What is the best type of dispute letter to send to Experian after they have investigated twice and then absolutely 100 % refuse to accept any more investigation requests? Thanks!
I don't think in this situation that is realistic. If they have already investigated it twice and no new info has been supplied to them, they most likely are considering more investigation requests to be frivolous and therefore are not required to reinvestigate. I'm not saying I agree with this, but that is what the FCRA says. If, however, new evidence has been supplied, then a lawsuit may very well be called for.
Ok, so if I have this situation and I were to send my unanswered disputes, proof of disputes, green cards (all copies to them, of course) then maybe???
NanaC, Yes, that would be considered additional evidence that the CRA would need to take into consideration. From the FCRA: § 611. Procedure in case of disputed accuracy [15 U.S.C. § 1681i] (a) Reinvestigations of disputed information. (1) Reinvestigation required. (A) In general. If the completeness or accuracy of any item of information contained in a consumer's file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly of such dispute, the agency shall reinvestigate free of charge and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30-day period beginning on the date on which the agency receives the notice of the dispute from the consumer. (B) Extension of period to reinvestigate. Except as provided in subparagraph (C), the 30-day period described in subparagraph (A) may be extended for not more than 15 additional days if the consumer reporting agency receives information from the consumer during that 30-day period that is relevant to the reinvestigation. (C) Limitations on extension of period to reinvestigate. Subparagraph (B) shall not apply to any reinvestigation in which, during the 30-day period described in subparagraph (A), the information that is the subject of the reinvestigation is found to be inaccurate or incomplete or the consumer reporting agency determines that the information cannot be verified. (2) Prompt notice of dispute to furnisher of information. (A) In general. Before the expiration of the 5-business-day period beginning on the date on which a consumer reporting agency receives notice of a dispute from any consumer in accordance with paragraph (1), the agency shall provide notification of the dispute to any person who provided any item of information in dispute, at the address and in the manner established with the person. The notice shall include all relevant information regarding the dispute that the agency has received from the consumer. (B) Provision of other information from consumer. The consumer reporting agency shall promptly provide to the person who provided the information in dispute all relevant information regarding the dispute that is received by the agency from the consumer after the period referred to in subparagraph (A) and before the end of the period referred to in paragraph (1)(A). (3) Determination that dispute is frivolous or irrelevant. (A) In general. Notwithstanding paragraph (1), a consumer reporting agency may terminate a reinvestigation of information disputed by a consumer under that paragraph if the agency reasonably determines that the dispute by the consumer is frivolous or irrelevant, including by reason of a failure by a consumer to provide sufficient information to investigate the disputed information. (B) Notice of determination. Upon making any determination in accordance with subparagraph (A) that a dispute is frivolous or irrelevant, a consumer reporting agency shall notify the consumer of such determination not later than 5 business days after making such determination, by mail or, if authorized by the consumer for that purpose, by any other means available to the agency. (C) Contents of notice. A notice under subparagraph (B) shall include (i) the reasons for the determination under subparagraph (A); and (ii) identification of any information required to investigate the disputed information, which may consist of a standardized form describing the general nature of such information. (4) Consideration of consumer information. In conducting any reinvestigation under paragraph (1) with respect to disputed information in the file of any consumer, the consumer reporting agency shall review and consider all relevant information submitted by the consumer in the period described in paragraph (1)(A) with respect to such disputed information.
Here's why you are wrong (ok.......why I believe you to be wrong). 1. The FCRA doesn't limit the number of time one can investigate. EXP 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." EXP does not get to choose what is "frivolous" -- a fact finder (a jury or a judge) gets to analyze whether their (purported) determination of frivolousness is legal. Factually they CANNOT defend a decision that ALL third investigations are frivolous by their very nature. That's what they have to do -- not argue that most are inaccurate, THEY have the burden of producing evidence that third disputes are actually "frivolous." No way -- that's a joke. EXP would get eaten for breakfast by a good lawyer. * 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. The letter EXP sends does not allege the dispute is frivolous and that's why they won't investigate. It says they won't because they already did. This is an internal corporate policy, a corporate policy which is not shared by either of the other CRAs. It is NOT legally defensible. A bunch of lawsuits NAMING PERSONAL DEFENDANTS might get results.
Two added FYIs.... 1. I do not believe the law contemplates or allows for "blanket" frivolousness determinations. I believe ANY determination of frivolous based upon a policy rather than an individualized determination is violation of the FCRA. This applies to the EXP 2 strikes and your out policy as well as the TU you are using a company we don't like policy. The test isn't "not likely to be found to be inaccurate" nor "quite likely not true" -- its "frivolous." 2. In California its even more clear. In California a CRA cannot base a frivolousness determination solely because the material contained in a consumer file. As I have repeated so often I am blue in the face, "ALL" the information the CRA maintains concerning a consumer is part of the file. In California "The presence of information in the consumer's file that contradicts the contention of the consumer shall not, in and of itself, constitute reasonable grounds for believing the dispute is frivolous or irrelevant." And in California wilful compliance is not $1000 per, its $5000 per violation.
Solzy, I don't disagree with anything you have said here. My post was meant as a suggestion of the cra's thinking. The FCRA indeed does not give a number for when a dispute becomes frivolous. Should a lawsuit be filed in a situation like this, I guarantee the defense is going to be that they disputed it 2 times, it was verified 2 times, and when they requested a 3rd without any additional proof of their claim that this isn't their acct (or whatever the dispute is), then as the FCRA allows, we determined the dispute to be frivolous". Do I agree with this - NO. I'm just looking at it from their side.
OK I've finally got some official interpretative guidance. This is the Federal Trade Commission Official Staff Commentary to section 611. Though not technically binding, it should be mroe than enough to win in any small claims lawsuit. If you adopt the FTC interpretation, they agree in part with what I have said (and disagree in part). Even if EXP defends based on purported frivolousness one should still be able to beat them.... 11. Frivolous or Irrelevant The mere presence of contradictory information in the file does not provide the consumer reporting agency "reasonable grounds to believe that the dispute by the consumer is frivolous or irrelevant.'' A consumer reporting agency must assume a consumer's dispute is bona fide, unless there is evidence to the contrary. Such evidence may constitute receipt of letters from consumers disputing all information in their files without providing any allegations concerning the specific items in the files, or of several letters in similar format that indicate that a particular third party (e.g., a "credit repair'' operator) is counselling consumers to dispute all items in their files, regardless of whether the information is known to be accurate. The agency is not required to repeat a reinvestigation that it has previously conducted simply because the consumer reiterates a dispute about the same item of information, unless the consumer provides additional evidence that the item is inaccurate or incomplete, or alleges changed circumstances. Or changes the nature of the dispute. So for EXP dispute twice (never late). Then make the third dispute different (not mine, wrong balance, whatever). Or provide ANY new information. The EXP requirement you send in documentation is bogus -- just allege something different or a changed circumstance. When they refuse to investigate based on two times prior. BAM you've got a violation. Now just sue and NAME SOME PERSONAL DEFENDANTS! Then you follow up with a subpoena for 1) your prior disputes (show they are different) and 2) any info transmitted to the OC by the CRA to show it was inadequate, based upon this commentary: 2. Proper Reinvestigation A consumer reporting agency conducting a reinvestigation must make a good faith effort to determine the accuracy of the disputed item or items. At a minimum, it must check with the original sources or other reliable sources of the disputed information and inform them of the nature of the consumer's dispute. In reinvestigating and attempting to verify a disputed credit transaction, a consumer reporting agency may rely on the accuracy of a creditor's ledger sheets and need not require the creditor to produce documentation such as the actual signed sales slips. Depending on the nature of the dispute, reinvestigation and verification may require more than asking the original source of the disputed information the same question and receiving the same answer. If the original source is contacted for reinvestigation, the consumer reporting agency should at least explain to the source that the original statement has been disputed, state the consumer's position, and then ask whether the source would confirm the information, qualify it, or accept the consumer's explanation. Note: I still do not believe EXP is complying with the notice provisions. I understand their defense will be "frivolousness" but they are not providing notice of such.
