Violation by the CRA??????

Sure, they should mark the account in dispute in a timely fashion. However, if they don't, so what? For a FCRA violation like that, you'd have to sue them to get them to delete. Since most people won't sue over small violations, and they know this, why would they delete (without being sued)?

However, you could write a nice letter to them outlining their violation. Or, dispute it again. Or, go after whomever is reporting this TL to the CRAs.

 

Is the investigation over?

What are you sending the nutcase for?

 

Just out of curiosity, what would happen if gc put down his $35 filing fee and sued Experian in small claims court over this particular violation of the FCRA? Does he have a chance to turn that into a $1000 windfall (or perhaps a $500 settlement plus a deletion), and is it worth the $35 gamble?

This looks to me like a clear-cut violation of the FCRA that would be easy for gc to prove and stupid & costly for Experian to defend. Doesn't the FCRA guarantee "damages of not less than $100 and not more than $1,000" and therefore gc would at least walk away with $100 minimum? How can he lose?

I'm just trying to get a better understanding of the pros and cons for suing the CRA in small claims over a single, small violation of the FCRA. It seems like you would have nothing to lose and everything to gain (and therefore little pressure on you). The $100 minimum award will at least cover your expenses, and you stand the chance of walking away with a very good deal for your $35 filing fee.

 

Greenvan said, "Just out of curiosity, what would happen if gc put down his $35 filing fee and sued Experian in small claims court over this particular violation of the FCRA? Does he have a chance to turn that into a $1000 windfall (or perhaps a $500 settlement plus a deletion), and is it worth the $35 gamble?"

Anything's possible. If they were served, they might just want to settle for deletion, or they could fight it the whole way. It really is a gamble. And EX has a lot of tricks they can use to make this "simple" case a royal pain. They can ask for changes in venue, etc. They could also counter-sue, claiming that the suit is frivolous and be awarded legal fees.

And remember, just because it seems like a "clear" violation, a judge may not see it that way. The judge could just say, "oh well, it was just a simple mistake. No harm no foul." Also, EX can claim they did mark it in dispute, it just didn't show up on GC's reports that way.

 

Re: Re: Violation by the CRA??????

Well it depends on how you craft your lawsuit, what you are asking for and who is doing the fighting. The few times the CRAs have fought, from what I read here the Plaintiffs were digging their heels in for some special things(i.e. not signing a confidentiality agreement, want money AND deletions). Also who gets the lawsuit matters. An outside law firm will look to bill hours and pull all these tricks like moving venue. I have civil trial attorney I was trying to recruit for a credit repair cottage business and he said that trying to move venue is reason to sue the ATTORNEY. He is clearly violating your civil rights(by not allowing you to defend yourself Pro Se effectively) and for violating the FCRA. He said that if you file a quick lawsuit against the attorney will get him to scatter like a cockroach and also contact the Defendant and tell them what's happening. Also a Small claims judge will hate the fact the lawyer is trying to pull some cr*p. You are afforded a hearing and the attorney would have a hard time justifying moving venue if in the FCRA it clearly states "Court of competent jurisdiction". "Why Mr. Scumbag is it necessary to move the venue to defend your client over a paltry 5 thousand dollars?"..Um,um, um your Honor. Counter suing you..well one motion to dismiss would nuke that. Especially if the Judge has a copy of your settlement agreement. Once again the CRA would have a hard time justifying reporting unverifiable and inaccurate information, if you have the goods. Small Claims Judges sometimes act irrational but they hate irrational Defendants more. It wastes his or her time away from the golf course.

 

Re: Re: Violation by the CRA??????

I don't know how an attorney is violating the FCRA by asking for a change of venue. I also don't know what you mean by the "few" times the CRAs have fought. Also, for small claims cases, the CRAs don't always send lawyers.

Lwg8tr said, "You are afforded a hearing and the attorney would have a hard time justifying moving venue if in the FCRA
it clearly states "Court of competent jurisdiction". "Why Mr. Scumbag is it necessary to move the venue to defend your client over a paltry 5 thousand dollars?"..Um,um, um your Honor."

From my own experience, and from what I've seen here and elsewhere, many small claims judges don't want to hear FCRA/FDCPA cases. They don't understand it and don't want anything to do with it. The CRAs will sometimes ask for a change of venue and, no, it isn't a violation of your "civil rights" for them to do this. They have every right to ask, and you have every right to argue that the case remain in small claims.

Lwg8tr said, "Especially if the Judge has a copy of your settlement agreement."

I don't understand what you're talking about here. Where has a settlement agreement come from?

Lwg8tr said, "Counter suing you..well one motion to dismiss would nuke that."

Why? If you're suing over a very minor violation (which, depending on your reading of the FCRA, may or may not be a violation), with no damages (like the situation of the OP), being counter-sued can happen, and has happened. You need to make a valid arguement in your motion to dismiss. Assuming you can just "nuke" it via any old motion to dismiss is not smart, IMHO.

 

Re: Re: Re: Violation by the CRA??????

Let address your points point by point. Affecting a case to deny you your civil rights is a tort. BBauer has the legal definition on the finer points of the reason why a lawyer can't just maneuver to get you to spend big bucks on an attorney just to prosecute your case.

As far judges not knowing or caring about the FCRA or FDCPA..who cares. You shouldnâ??t either. As long as you can establish jurisdiction he has to learn. And to pursue your point further I doubt most District court judges have either.

The settlement agreement is sent when you have the lawsuit served. If you do not send the settlement agreement then you may have a fight on your hands. The CRA will not fight to keep information on your reports. This is not even debatable. It makes no common sense or fiscal sense for them to do this. Any exception to this was due to the bungling on Plaintiffs part. It's a business decision on the part of the CRA. It cost thousands of dollar to even defend a Small Claims case. If you are offering them a 0$ way out, they will take it. Ask LizardKing and other successful Plaintiffs, they always cave if you do the setup correctly.

A counter suit on what are "small violations", which is the judge of small violations? The CRA, you, the Judge, George Bush? There is no level of severity in the statutes.

I have done this whole process with the wife so I speak from experience. They cave, trust me.

 

Re: Re: Re: Violation by the CRA??????

This is an interesting approach. Unfortunately, our state code pertaining to small claims cases clearly specifies that "The defendant has the right to remove the case to the general district court." Therefore, I don't think it would work in our state.

The way I read it, FCRA 616(a) states that you can sue for actual damages OR $100-1000. The cause of action is simply stated as "Any person who willfully fails to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer in an amount equal to..."

I don't see anything in the FCRA that says a consumer has to have damages, and nothing that distinguishes between a MAJOR or MINOR violation. The way I read it, a minor violation with no damages is still worth $100-1000 depending on how the judge feels that day. On the other hand, if the defendant can convince the judge that what he did was not technically a violation of FCRA, then he wins the case period.

I would think your valid argument to dismiss a counter suit would simply be: This action violates FCRA for the following reasons...this is a logical conclusion for a consumer to make in his reading of the FCRA...this action had the following negative effect on my credit report...therefore I did not consciously file this suit frivolously.

 

Re: Re: Re: Violation by the CRA??????

lwg8tr,

Of course the CRA can just settle for deletion. It's happened many times. But that doesn't mean they always do, or always will. The CRAs sell a product that they claim is accurate. How long can they claim it is accurate if all anyone has to do is file a small claims suit to get any items removed from their reports? In the end, I just think it's foolish to assume that they will settle everytime.
The point about small claims judges not understanding the statutes is this: if they are not comfortable hearing the case they will bump it up, regardless of how well you make the arguement that they should hear it.

Greenvan,

Of course the FCRA has no "major" vs. "minor" violations. However, common sense says that a judge may consider some violations of the FCRA as "major" and others as "minor". Remember: "(c) Limitation on liability upon showing of reasonable procedures for compliance with provisions. No person may be held liable for any violation of subsection (a) or (b) of this section if he shows by a preponderance of the evidence that at the time of the violation he maintained reasonable procedures to assure compliance with subsection (a) or (b) of this section. " Would the OP's violation rise above this (if it actually went to court)? Probably not, that's why I called it "minor".

 

Re: Re: Re: Violation by the CRA??????

scout,

In reading the FCRA again, I'm not sure that the OP's issue is really a violation at all. Where does it say in the FCRA that a CRA must mark an account as being "disputed" or "under investigation"?

Also, your reference to "no person may be held liable for any violation of subsection xxx of this section if he...maintained reasonable procedures to assure compliance..." only applies to FCRA 606 and 615. Therefore, it would not apply to the sections of the FCRA under which most of the violations that we would be suing for would fall.

 

Re: Re: Re: Re: Violation by the CRA??????

Well I agree nobody should assume anything when going to court. I think the CRA will fight if your evidence is flimsy, your presentation is amatuerish, and you display a reluctance to play hardball. If you are patient and meticulous the CRAs will almost always cave. Not to sound like a broken record but CRAs always take into account the economic impact to themselves before they consider the integrity of their client's information. Equifax has millions of credit reports in their database, having to take it on the kisser a few hundred times a year does'nt bother them that much I am sure.

I am not a lawyer but I can't see if you successfully establish jurisdiction in Small Claims before you get into the meat of your case, how the judge can bump it up. Anyways, I believe with the info people can arm themselves with here that District court would'nt be all that scary or all that different. Another bluff you call on "Mr. Bigshot" attorney who is still busy tilting at windmills. I think sanity would come into play way before this and the CRAs roll right over all fours in the air.

 

Re: Re: Re: Re: Violation by the CRA??????

If a judge doesn't feel comfortable trying a case and they are presented with an opportunity to kick upstairs they'll do it in a heartbeat.
Another reason a CRA may fight to the death to move a case to Federal Court is the delay factor. There are number of vacant Federal Judgeships all over the country. In my Federal Court District, it takes a year to get a civil case to trial. The SPeedy Trial Act means preference is given to criminal cases and if you get a backlog of those built up and some last a couple of weeks a civil case may well have a lot of age on it before a trial date is set.

 

Re: Re: Re: Re: Violation by the CRA??????

bump for a definitive answer on this one

 

§ 605. Requirements relating to information contained in consumer reports [15 U.S.C. § 1681c]
(f) Indication of dispute by consumer. If a consumer reporting agency is notified pursuant to section 623(a)(3) [§ 1681s-2] that information regarding a consumer who was furnished to the agency is disputed by the consumer, the agency shall indicate that fact in each consumer report that includes the disputed information

§ 623. Responsibilities of furnishers of information to consumer reporting agencies [15 U.S.C. § 1681s-2]
(3) Duty to provide notice of dispute. If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.

 

slstafford,

I respectfully disagree.

I believe that § 605(f) and § 623(a)(3) are referring to the case where a consumer directly notifies a "furnisher of information" (i.e. a CA or OC) that the consumer is disputing the completeness or accuracy of the furnisher's tradeline. In that case, the furnisher cannot continue to report the tradeline to the CRA without providing notice that the information is being disputed by the consumer. Subsequent to receiving such notification BY THE FURNISHER, the CRA must then indicate that fact (i.e. that the information is disputed by the consumer) in any future credit report containing that particular tradeline.

However, these sections of the FCRA do not require the CRA to mark an account as being "disputed" or "under investigation" simply upon the CRA receiving a dispute directly from the consumer. In fact, I do not find this requirement anywhere in the FCRA.