RECAP: Lawsuit #1: Sued mortgage company in small claims for AR on closed-end mortgage. Defendant failed to appear. Awarded $1000 judgment. Lawsuit #2: Repeat of #1 for another AR on different date. Defendant failed to appear. Awarded $1000 judgment. Lawsuit #3: Sued credit card company in small claims for AR on a closed account. Defendant failed to appear. Awarded $1000 judgment. This morning I appeared again in small claims court. The company I was suing was either a mortgage company or a mortgage insurance company (they swing both ways). Anyway, they had pulled an AR even though I never had an account with them and never applied for credit or insurance with them. The company did respond to my initial letter questioning their permissible purpose by saying that they had no record of me, and could I please send them a copy of my credit report showing the inquiry. I ignored them...if they won't explain their PP in their letter, then let them explain it to the judge. The defendant failed to appear, and I was awarded judgment for $1000 plus court costs. I have two more cases coming up next month. In the (approximate) words of the late Robert Kennedy: "My thanks to all of you...and now it's on to November and let's win there too!"
Thanks for letting us know. I'm going to proceed doing the same for a few companies starting with clearcredit. You had no trouble from the judge with it being AR seeing that you can't exactly claim any losses? I know the law says $1000 or amount of damages whichever higher, but I'm just curious how it worked out in real life. I've been trying to figure out if I can take the same course of action for companies that had approval, but pulled the report twice in the same day. Any thoughts? Also is it $1000 per inquiry per report or per inquiry inclusive of all three reports?
AR might weaken claim for actual damages, but FCRA is pretty clear that without PP company should not pull at all regardless of how it is marked. There is even an FTC letter indicating that there is no PP just because you are in litigation with them. Credit reports are available for legitimate or authorized purposes, not just to browse for potential customers (promotional information is not a complete report), or to give an advantage to an adversary; reguardless of whether pulling one does damage, it is invasive.
One judge was unfamiliar with the FCRA. She read Section 616 and then asked to see my damages. I replied that I had no damages but was suing for the statutory violation of $1000, which caused her to read the section more carefully and then agree with me. Another judge who had continued the case for service of process reasons questioned whether the case could be heard at all in small claims because it involved a Federal law. I was ready for that argument at the next hearing...but then he got rotated out of the small claims circuit. If you think about it, it would be pretty hard to claim legitimate monetary damages even from a single hard inquiry. Fortunately, the FCRA does not deal with hard vs. soft and the FICO issue (these are merely inventions of the CRAs). Be ready to present the "violation of privacy" argument supported by the Benner FTC Opinion Letter. The FCRA doesn't ask or condition the violation on whether the inquiry is seen by others or whether it hurts your credit score...if they had no right to view your private and confidential credit information, then they owe you the $1000 penalty for their actions. What about companies that already had your approval? Existing creditors can pull an AR a thousand times a day if they want (knock themselves out). However, I'm not sure about two hard inquiries from the same company on the same day...I know that mortgage companies routinely pull multiple inquiries. Guess it depends on the situation and how you establish your paper trail. I would probably dispute it with both the CRA & OC as being duplicate entries and request deletion, and if they refused to delete the duplicate entry then you might have a cause of action for that. However, the $1000 statutory violation is strictly for pulling your report "without a permissible purpose." My cases are $1000 for a single inquiry on a single report. If they also pull other credit reports, they are gaining access to additional quantities of your private information from the other CRAs and therefore each individual pulling of your credit report is actionable. If they pull one inquiry on one date from all three CRAs, they owe you $3000...just be sure to make each one a separate case and spread them out timewise so the judge doesn't yell at you.
I haven't entered that phase yet. I'm curious myself to see how difficult it will be to collect and whether any of the creditors try to void the judgment. Also, I don't want to collect on the mortgage company just yet because there are still more ARs from them that I'd like to address first...
You're right, credit reports are available only for legitimate purposes. That makes me wonder why I started getting so many ARs from my mortgage company and other mortgage companies/ mortgage insurance providers, often pulled on the same date. I SUSPECT that they were doing some illegal marketing stuff with my private credit information. When I finally whittle this down to the last illegal AR on my report, I am thinking of filing a Federal lawsuit (maybe $10k) against the mortgage company and doing some discovery to find out what they were actually doing with this information.
Could you post a copy of your civil suit? I was planning on filing today, but will probably file next week instead. I haven't written my lawsuit yet, but it's also for a non-pp inquiry. Steve
Re: Re: I won lawsuit #4 for $1000 My state uses a standard small claims form with a single line on which to state your complaint. In the past I have simply written: "Violation of Section 604 of the Fair Credit Reporting Act for the Equifax inquiry dated 7/26/01." In the future I plan to simply write: "Violation of the Fair Credit Reporting Act" and then explain the circumstances to the judge on the court date. Be sure to send the creditor a CRRR letter asking what their PP was and give them a chance to respond before you file suit, as the judge may ask if you contacted the creditor and what their response was. They will probably respond that they have no record of you and ask for a copy of the credit report showing the inquiry, or else not respond at all. However, don't reply to their letter and don't send them your credit report. Your letter is just a formality to show the judge that you gave them an opportunity to explain their PP but they refused.
Re: Re: I won lawsuit #4 for $1000 LOL thanks I know it's out there somewhere, but I'll bug you and ask if you know of hand how long after the account is closed they can pull AR for a credit card as opposed to a closed end loan? Here's another thing that might be tricky and I would appreciate an opinion. A mortgage broker we previously did business with was asked if they have a specific product for us and were told what the person's score was at that time and that we didn't want them to pull prior to knowing they can offer that hard to find product with the forementioned score. They pulled anyway because they had the SSN from before. Few days later, after learning they did that and ruined 6+ months with no pulls in the process, they were told we know they did this, not to do it again and that the score improved due to paying down balances. They pulled another triple report, and when confronted about that said "don't worry, that won't make a difference in our lending decision." Whatever that was supposed to mean. Can you believe the audacity? Their lending decision, of course was irrelevant at that point. I want this company to cough up. What I'm asking is if the fact that they had the SSN from before and a prior relationship is going to be a problem even though they were given the score and specifically asked not to pull unless they can offer the product in question?
Re: Re: Re: I won lawsuit #4 for $1000 Slavic, The FTC has taken the position per the Benner FTC Opinion Letter that, in the case of an open-end account such as a credit card account, no PP exists once the consumer has notified the creditor to close the account. Therefore, as soon as you officially notify the creditor to close the account and the creditor receives that notification, the PP is gone. If I understand your other question correctly, I believe your problem will be producing some hard evidence to show what the agreement was between you and the mortgage broker. Without having something in writing, it would be difficult to prove your case. Some mortgage brokers can be a little tricky at times (hope I don't offend anyone here). I actually have a similar case in which I called up a mortgage broker I had previously worked with and simply asked what her company's current interest rates were for a specific product. Without getting my permission, she then pulled all three credit reports. My only evidence consists of two voicemails that she left at work which seem to back up my story that she pulled those reports on her own and without my express permission. It's a little weak, but I might eventually try a PP case on one of the inquiries just to see how they will react. I was still shopping for a mortgage at the time and certainly didn't appreciate the lowering of my credit scores by those inquiries! Oh...just remembered another one. The broker was trying to retrieve and print out my previous CR from the computer and accidentally hit the "PULL NEW CREDIT REPORT" button! Her boss was right there in the room and she called him over to witness what had happened. If they had a good attorney, they would probably be able to argue successfully that it was a negligent violation (i.e. honest mistake) rather than a willful violation of the FCRA.
Re: Re: Re: I won lawsuit #4 for $1 My main concern was that the prior relationship doesn't automatically give them the right to pull. I think there will be no problem with regards to them not being authorized to pull at that time since the person inquiring about the loan was not the person whose credit report was pulled so they couldn't have had the permission at all. They never even spoke to the person whose report was pulled. This just gives me further incentive to record all telephone conversations. You don't accept to be recorded - no business for you. I assume it's the same with a closed end mortgage. No PP after it was paid in full. Thanks for your help.
So, this means that all those hard inquiries made by Sears after the account was closed like 10 years ago were non PP? I can't remember if Sears closed the account or I did. Does that make a difference?
They were non-PP regardless of who closed the account. Per the FTC, once the account is closed a business relationship no longer exists, and there no longer exists any account for the creditor to review.
I read the Benner letter, and read between the lines that they are assuming an account that is closed = paid off. Maybe closed out would be a better term. Closed and paid. If you owe them money, it would fall under the PP for collection of an account.
Re: Re: I won lawsuit #4 for $1000 Good point jlynn. This refers to accounts that are closed (by either party) and where the debt has been satisfied in full, which would include being discharged in bankruptcy. It does not refer to closed accounts where the creditor still has the right of collection, since collection is a valid PP. Thanks for the clarification.
Re: Re: Re: Re: I won lawsuit #4 for $1 I had a very similar situation happen and sent a demand for payment letter with cc: to the Federal Trade Commission and the California Department of Consumer Affairs. Within days of sending the letter, the mortgage broker was in BIG trouble and being threatened with having his access to pull credit reports permenantly terminated (and hence, putting him out of business). The burden of proof is not on you to prove that you didn't give permission, it is on the broker to prove that you did. He needs to provide a signed consent form, a signed mortgage application, something showing that there was a deal on the table. My sister works in the mortgage industry and she told me that these kind of shenanigans are taken VERY seriously -- particularly given the huge amount of fraud and deceipt that is common in the industry.
Re: Re: I won lawsuit #4 for $1000 You just answered the question I revived an old thread for. Thanks.
I am a newbie in this financial world, but let me ask you ... Are you saying that if I have closed (and paid) a CC account on certain date and the CC issuer has pulled out my CR after that date without my permission (or applying for a new card with them), I can sue them?
