Wooooh, boy!

jam237 · Jun 26, 2012

Tomorrow is going to be a fun day...

I get to play file the papers at the courthouse, not once, not twice, but thrice...

Nothing like filing three suits at a time for judicial expediency.

JoshuaHeckathorn · Jun 26, 2012

You, my friend, have a strange understanding of the word "fun" .

jam237 · Jun 26, 2012

Well, the fun comes when they get the mail...

jam237 · Jun 27, 2012

Filed!
Filed!
Filed!

It's funny, each case was assigned a different judge.

jam237 · Jun 28, 2012

All three popped up on Justia, so they're showing within Pacer now...

jam237 · Jun 30, 2012

So far I know 2 of the 3 are progressing.

Received confirmation that one of them has even been ordered for service by U S Marshalls.

jam237 · Aug 3, 2012

Ah, the fun continues...

JoshuaHeckathorn · Aug 3, 2012

And what's going on now Jam?

gevans10 · Aug 3, 2012

Yes Jam. Keep us posted!

jam237 · Sep 27, 2012

Update: 1 settled, 1 in pre-trial briefs (government asking for a stay until a Supreme Court ruling), 1 hasn't progressed, yet...

jam237 · Oct 10, 2012

Another day, another two suits filed...

I love making new friends...

jam237 · Nov 25, 2012

Ok, I have a feeling I am having a busy year...

So far, this year... 6 suits filed, and at least 3 more to file in the next few weeks...

1 the defendant is still waiting to be served, 1 defendant in one case hasn't been served, yet... but it's been in pre-trial motions for many, many months now, anyhow...

nunna · Dec 1, 2012

bump...update?

jam237 · Dec 1, 2012

Will be filing the 3 suits next Monday, for judicial expediency. I could file two now, and one in a week, but better to make one trip to the federal courthouse.

Only case that is updateable, is my case against the federal government for violating the FDCPA.

Now that I added nonfinancial penalties, the government's motion to dismiss is moot, so now they actually have to argue that DoEd wasn't reporting incomplete, inaccurate or unverifiable information... Which is impossible when one of the fields being reported was "DATA NOT AVAILABLE" which is prima facia, incomplete, inaccurate or unverifiable.

And they are on notice that the financial penalties will be appealed to the Third Circuit, because Bourmes remanded that question back to the Seventh Circuit.

Logan Abbott · Dec 3, 2012

First two suits are still in limbo?

jam237 · Dec 3, 2012

1 suit is still waiting service, no idea why that one hasn't been served, yet.

The suit with DoEd, TransUnion hasn't been served as best as I can tell.

Almost thought I would only have 2 suits to file next week, but luckily, one itty, bitty thing was missing from the letter that I got today. Awwwww don't you hate it when you comply with 99.44% of the law, and the mean consumer doesn't let you get away with the close enough defense.

15 U.S.C. 1681m(a)(2)(A) is a nice little bonus.

jam237 · Dec 6, 2012

A new ASA is once again arguing Soverign Immunity.

Yeah, I get to have fun ripping their two page motion to dismiss to shreds.

Ok everyone, get ready for some fun reading... I will break it up into several posts to make it easy to read. (A 7 page answer to a 2 page motion.)

jam237 · Dec 6, 2012

Answer to Motion to Dismiss

Here comes the defendant, United States Department of Education with a motion to dismiss on failure to state a claim.

A court should not dismiss for failure to state a claim unless the defendant can show beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.
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jam237 · Dec 6, 2012

Answer to Motion to Dismiss - Part II

Sovereign Immunity

The defendant’s first claim is once again the question of Sovereign Immunity. This court granted the defendant a month to allow the United States Supreme Court to answer this question of law, in the matter of the United States v. Bormes.

The United States Supreme Court instead of answering the question of whether or not Sovereign Immunity applied to the Fair Credit Reporting Act, or was implicitly waived under the Fair Credit Reporting Act, chose instead to remand this question back to the Court of Appeals.

Thus, if this motion is granted, this matter would be instantly appealable to the Third Circuit Court of Appeals; as being improperly granted since the United States Supreme Court refused to answer this crucial question of law, which the defendant continues to argue in vein.

15 U.S.C. Â§ 1681a(b) defines a person to include “government or governmental subdivision or agency, or other entity” this definition includes, The United States, and the United States Department of Education.

15 U.S.C. Â§ 1681a(c) defines a consumer to be “an individual”.

15 U.S.C. Â§ 1681n(a)(1)(A) establishes that in general, 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 the sum of any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000.”

15 U.S.C. Â§ 1681n(a)(2) establishes that could include “such amount of punitive damages as the court may allow; and”

15 U.S.C. Â§ 1681n(a)(3) establishes that “in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.”

As these provisions state that any person, and the legislative definition of person includes “government or governmental subdivision or agency, or other entity”, there is a question of law as to whether or not there is a waiver of the Sovereign Immunity in this matter.

From the government’s testimony before the United States Supreme Court, there are provisions of the law which they admit that they most probably are civilly liable to consumers under, additionally; the government testified that they are obligated to comply with the law because of a series of contracts which allow them to do business under the act.

Further it was testified to before the Supreme Court that the United States is one of the largest organizations to engage in credit card transactions, through discovery it will be ascertainable to what extent they are one of the largest organizations to engage in credit reporting and the obtaining of consumer credit reports from Consumer Reporting Agencies. It would be unconscionable for the act which is designed to protect consumers from the reporting of incomplete, inaccurate or unverifiable information would exempt from liability one of the largest organizations with the power to summarily abuse the most consumers, without providing any method for said consumers to seek redress.

The government claimed that after the government willfully and knowingly entered into said contracts with credit card merchant banks, credit card processing companies, consumer reporting agencies, and others, that the law changed to make all persons, not just Consumer Reporting Agencies liable to consumer’s for damages.

Unfortunately, however, the government willfully and knowingly continued to receive the unjust enrichment from its contractual engagements which require it to comply with the Fair Credit Reporting Act. The government now argues that it should be able to force majeure the Civil Liability provisions of the Fair Credit Reporting Act, which they are contractually obligated to comply with in its entirety, instead of contacting the other parties of the series of contracts requiring it to comply with the Fair Credit Reporting Act, and requesting to renegotiate said contracts to allow it to not be bound to comply with the Fair Credit Reporting Act. It’s important to note that if any of those other parties would allow said renegotiation, they would be in violation of the Fair Credit Reporting Act for not maintaining adequate safeguards to ensure their own compliance with the Fair Credit Reporting Act.
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jam237 · Dec 6, 2012

Answer to Motion to Dismiss - Part III

15 U.S.C. Â§ 1681s-2(a)

The defendant’s second rationale for its motion for failure to state a claim is under 15 U.S.C. Â§ 1681s-2(a).

However, all counts being argued are not violations of 15 U.S.C. Â§ 1681s-2(a). The inaccurate information being reported on the initial credit report obtained from TransUnion on 03/31/2012 is the only instance where 15 U.S.C. Â§ 1681s-2(a) was in play.

Said inaccurate information was disputed through TransUnion, thus the remainder of the times when the United States Department of Education provided incomplete, inaccurate, and unverifiable credit information, it was due to the United States Department of Education’s failure to properly perform an investigation, or failing to properly modify or delete the disputed information pursuant to 15 U.S.C. Â§ 1681s-2(b).

“The complaint alleges that the plaintiff disputed the information regarding the PECO bill with both the credit reporting agency defendants and with InoVision. The complaint also alleges that InoVision, after notice of the dispute, failed to conduct the required investigation and has continued to report the disputed information to various consumer reporting agencies. These allegations are sufficient to invoke 5 1681s-2(b) of the FCRA.” Sullivan v. Equifax

“MBNA argues that the language of Â§ 1681s-2(b)(1)(A), requiring furnishers of credit information to "conduct an investigation" regarding disputed information, imposes only a minimal duty on creditors to briefly review their records to determine whether the disputed information is correct. Stated differently, MBNA contends that this provision does not contain any qualitative component that would allow courts or juries to assess whether the creditor’s investigation was reasonable. By contrast, Johnson asserts that Â§ 1681s-2(b)(1)(A) requires creditors to conduct a reasonable investigation.2 We review this question of statutory interpretation de novo. See Holland v. Pardee Coal Co., 269 F.3d 424, 430 (4th Cir. 2001).

In interpreting a statute, we must first "determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). "Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent." Id. (internal quotation marks omitted). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341.

The key term at issue here, "investigation," is defined as "[a] detailed inquiry or systematic examination." Am. Heritage Dictionary 920 (4th ed. 2000); see Webster’s Third New Int’l Dictionary 1189 (1981) (defining "investigation" as "a searching inquiry"). Thus, the plain meaning of "investigation" clearly requires some degree of careful inquiry by creditors. Further, Â§ 1681s-2(b)(1)(A) uses the term "investigation" in the context of articulating a creditor’s duties in the consumer dispute process outlined by the FCRA. It would make little sense to conclude that, in creating a system intended to give consumers a means to dispute—and, ultimately, correct—inaccurate information on their credit reports, Congress used the term "investigation" to include superficial, unreasonable inquiries by creditors. Cf. Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1160 (11th Cir. 1991) (interpreting analogous statute governing reinvestigations of consumer disputes by credit reporting agencies to require reasonable investigations); Pinner v. Schmidt, 805 F.2d 1258, 1262 (5th Cir. 1986) (same). We therefore hold that Â§ 1681s-2(b)(1) requires creditors, after receiving notice of a consumer dispute from a credit reporting agency, to conduct a reasonable investigation of their records to determine whether the disputed information can be verified.

2 Neither this court nor any other circuit has addressed the extent to which a creditor must investigate a consumer dispute in order to avoid liability under Â§ 1681s-2(b)(1). However, district courts that have considered the issue have consistently recognized that the creditor’s investigation must be a reasonable one. See Agosta v. Inovision, Inc., 2003 WL 22999213, at *5 (E.D. Pa. Dec. 16, 2003); Buxton v. Equifax Credit Info. Servs., Inc., 2003 WL 22844245, at *2 (N.D. Ill. Dec. 1, 2003); Wade v. Equifax, 2003 WL 22089694, at *2-*3 (N.D. Ill. Sept. 8, 2003); Betts v. Equifax Credit Info. Servs., Inc., 245 F. Supp. 2d 1130, 1135 (W.D. Wash. 2003); Olwell v. Med. Info. Bureau, 2003 WL 79035, at *5 (D. Minn. Jan. 7, 2003); Kronstedt v. Equifax, 2001 WL 34124783, at *16 (W.D. Wis. Jan. 25, 2001); Bruce v. First U.S.A. Bank, 103 F. Supp. 2d 1135, 1143 (E.D. Mo. 2000).” Johnson v. MBNA.

“As previously mentioned, FCRA imposes certain duties, such as the duty to conduct an investigation, on credit reporting agencies and lenders. 15 U.S.C. Â§ 1681s-2(b). A plain reading of the Act reveals that these duties are triggered when a credit reporting agency or lender receives notice of a dispute from a consumer. Id. FCRA does not punish a lender merely for furnishing inaccurate information to a credit reporting agency. Rather, FCRA provides damages when a bank or credit reporting agency fails to take certain steps once notice of a consumer dispute is received. Id. It is the failure to act as prescribed by the statute after receiving notice of a dispute which creates the cause of action.” Broccuto v. Experian.

“Section 1681s-2(b) imposes a second category of duties on furnishers of information. These obligations are triggered “upon notice of dispute”— that is, when a person who furnished information to a CRA receives notice from the CRA that the consumer disputes the information. See Â§ 1681i(a)(2) (requiring CRAs promptly to provide such notification containing all relevant information about the consumer’s dispute).

Subsection 1681s-2(b) provides that, after receiving a notice of dispute, the furnisher shall:
(A) conduct an investigation with respect to the disputed information;
(B) review all relevant information provided by the [CRA] pursuant to section 1681i(a)(2) . . . ;
(C) report the results of the investigation to the [CRA];
(D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other [CRAs] to which the person furnished the information . . . ; and
(E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1) . . . (i) modify . . . (ii) delete [or] (iii) permanently block the reporting of that item of information [to the CRAs].
Â§ 1681s-2(b)(1). These duties arise only after the furnisher receives notice of dispute from a CRA; notice of a dispute received directly from the consumer does not trigger furnishers’ duties under subsection (b). See id.; Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059-60 (9th Cir. 2002).

The FCRA expressly creates a private right of action for willful or negligent noncompliance with its requirements. Â§Â§ 1681n & o; see also Nelson, 282 F.3d at 1059. However, Â§ 1681s-2 limits this private right of action to claims arising under subsection (b), the duties triggered upon notice of a dispute from a CRA. Â§ 1681s-2(c) (“Except [for circumstances not relevant here], sections 1681n and 1681o of this title do not apply to any violation of . . . subsection (a) of this section, including any regulations issued thereunder.”). Duties imposed on furnishers under subsection (a) are enforceable only by federal or state agencies.9 See Â§ 1681s-2(d).” Gorman V. Wolpoff & Abramson.
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