Re: Re: Re: Re: Need Caselaw Help Okay, I really need some brutally honest opinions here (hopefully based upon someone's actual experience, but even devil's advocating will be appreciated). I believe that I have caselaw on my side in terms of my non-PP argument. The creditor has basically argued two things: 1) That a Bullseye Report is not a credit report. 2) That they had PP under 1681b(3)(F)(i). Point #1 is pretty well covered in Yang v. Gov't Employees Ins. Co.: "Thus, Yang's IAR is a protected "consumer report" because Equifax compiled it for credit-related purposes and expected it to be used for such purposes.." Experian's Bullseye Report sales literature confirms this expectation: "Provides accurate, current and complete information to acquire new business, manage customers and maximize collections. Files on nearly 205 million credit-active consumers nationwide are maintained in Experian's database. An inquiry initiates a search of this database, which provides an applicant's credit history in a TTY (human-readable) report format." Point #2 is covered under Ippolito v. WNS: "In other words, the definition of "consumer report" has essentially been limited to information that is "used or expected to be used or collected" in connection with a "business transaction" involving one of the "consumer purposes" set out in the statute, that is, eligibility for personal credit or insurance, employment purposes, and licensing." It is further covered under Chester v. Purvis: "The crucial words are "and no other" in the opening phrase: "Subject to subsection (c) of this section, any consumer reporting agency may furnish a consumer report under the following circumstances and no other. (Emphasis added.) We must interpret a statute in terms of its plain meaning . . . It follows that, when a statute provides a list of circumstances under which it applies and informs us that the list is exhaustive -- "and no other" -- we have no basis for modifying it by addition or subtraction. . ." I still need to clarify if under CA law it matters if it is negligent or willful, and if it doesn't matter, what are the standards for negligent? (I have to plow through the caselaw I've pulled.) My question is this: Even on this board, people's reaction seems to be that it was a soft pull so it really isn't that big of a deal. (And, honestly, if they had corrected their error after pulling the inquiry I wouldn't have pursued anything, but since they forced me to file a lawsuit just to get an obvious error corrected, I think their feet should be held to the fire.) If CNetter's don't see this as a big deal, what's the likelihood that a judge, even with caselaw in front of him, will rule in my favor?
Re: Re: Re: Re: Need Caselaw Help If the report includes credit information from others other than their own tradeline, it would be hard to argue it is not a credit report.
Re: Re: Re: Re: Need Caselaw Help I was fortunate enough to sue Experian in CA and win. It was not for PP, but for an incorrect report. The case was similar to yours (an error that could have been corrected, but Experian was too arrogant to do it). The judge ruled in my favor, but only gave me actual damages: day's pay, postage, process server fees. He specifically ruled, however, that there was no willful violation on the part of Experian. I'm familiar with the CCRAA statute re permissible purpose as well as the statute for damages. For a court to find willfulness is an extremely high hurdle and one that I think is unfair to consumers. If you're able to sue in Superior court, you might want to consider (a) the costs; (b) the time; and (c) the return on your investment. If you sue in Superior court, the CRA will hire counsel. You'll have to spend about $100 for filing fees, plus cost of service. You'll have to appear at case management conferences; respond to and prepare discovery; reply to motions; and if you arbitrate, you'll need to prepare a very persuasive arbitration brief. Granted, if you can hire an attorney then you can just sit back and wait. But that's a lot of work for an attorney when it comes time to damages. Again, more than likely, your case is a negligence one. A good one, but negligence nontheless. A contingency is pretty much out of the question for any respectable and competent attorney. If you get kicked from Superior, consider suing in federal court (U.S.D.C.) under the FCRA.
Re: Re: Re: Re: Need Caselaw Help Kickman - Under what circumstances does a consumer have a chance of winning a non-PP lawsuit? (Assuming a creditor does not settle, lose by default, etc.) Taking it to the extreme, in a soft pull situation, a creditor can pull your CR to their heart's content and claim it was not willful and they're scott free because there are no punitive damages afforded negligent noncompliance (at least within the FCRA -- I still need you to walk me through the language of the CCRAA on this issue). I agree that caselaw is pretty strict in terms of the definition of "willful." In a hard pull situation (such as your Dollar Rent-A-Car issue), they can also claim that it was not willfull. In Duncan v. Handmaker: " . . . the defendants cannot be held civilly liable if they obtained the Duncans' reports 'under what is believed to be a proper purpose under the statute but which a court . . . later rule to be impermissible legally under 1681b.'" Duncan, 149 F.3d at 429 (quoting Kennedy v. Border City Sav. & Loan Ass'n . . .). So, at best, you can sue for actual damages and then, what are you going to get? A few hundred dollars? I haven't finished looking up what the standard for negligent non-compliance is, but I'm guessing that there is wiggle room in that as well. So outside of flagrant mis-uses of PP (for litigation purposes, etc.), has anyone ever actually had a judge rule in their favor? (Once again, I'm not talking about settlements, defaults, etc.)
Re: Re: Re: Re: Re: Need Caselaw Help The chances aren't that bad at winning a negligence case. You do need good facts as well as a good understanding of the statutes involved. In short, most judges are going to heir on the side protecting the business. As such, you as plaintiff want to leave little or nothing to inference. Trying to prove something by inference often leaves a nice loophole for a corporate defendant or a sympathetic judge to wiggle through. Write down or copy each relevant statute, then bullet-point each fact that corresponds. You're on the mark re willfulness. It's a very hard sell to the courts. In your case, you're gonna have to prove that they knew or should have known that pulling a hard, soft or Bullseye CR was a non-PP. If you can, and if you sue under the CCRAA, then you get actual damages, plus costs. But here in CA, you can also get injunctive relief along with your monetary judgments. You can peruse the CCRAA beginning at: http://caselaw.lp.findlaw.com/cacodes/civ/1785.1-1785.6.html I believe the PP statute is at 1785.22. Remember, the $2,500 in damages is what you could get after proving willfulness. But remind me; aren't you wanting to appeal a small claims decision in favor of the CA?
Re: Re: Re: Re: Re: Re: Need Caselaw Help Sorry to be a pest, but . . . Anyone else have any thoughts, comments, suggestions, etc.? IF I am going to appeal, I need to file the paperwork before 2/20. Anyone have any experience in terms of how closely Superior Court judges follow the law? I think one of the problems (of many) with the Small Claims system is that the judge doesn't have to provide any reasoning behind his decision and I think that this makes him/her less accountable and provides more latitude for them to apply their own sense of right and wrong versus applying the law. Do Superior Court judges put their decisions in writing? (Specifically in terms of their thought process in the application of the law.) Even though I believe that I have the law on my side and can back it up with plenty of caselaw, I am beginning to believe that the law really doesn't apply when it comes to the whole credit game. (And unfortunately, that tends to put the consumer on the losing end most of the time!)
Re: Re: Re: Re: Re: Re: Need Caselaw Help Help me understand a bullseye inquiry. It is just the transactions between the consumer and the party making the bullseye inquiry, no? I just heard the term for my first time recently.
Re: Re: Re: Re: Re: Re: Need Caselaw Help My understanding is that they receive your credit header (name, SSN, address, former address, employment, etc.) and their particular tradeline. What's a bit more annoying to me is that Bullseye inquiries are run all the time and not reported as inquiries. The creditor who pulled the Bullseye on me said over and over again that they couldn't understand why I was even seeing their inquiry on my report. She indicated that they've been running Bullseye's all the time over 23 years and they've never had a problem with it showing up before. I'm wondering if this indicates a change in policy for EXP, because I've now had a handful of other companies showing up with soft inquiries on my report that are coded similarly. Interestingly, the creditor also indicated that this allowed them to view EQ and TU as well, but there is no record of an inquiry on either of them.
