Wooooh, boy!

jam237 · Dec 6, 2012

Answer to Motion to Dismiss - Part IV

15 U.S.C. Â§ 1681s-2(a) - Continued

“(1) The FCRA (15 U.S.C. Â§ 1681 et seq.) was adopted by Congress to ensure accuracy and fairness in credit reporting and to protect the rights of individual consumers. (See 15 U.S.C. Â§ 1681(b); Jones v. Federated Financial Reserve Corp. (6th Cir. 1998) 144 F.3d 961, 965; Pinner v. Schmidt (5th Cir. 1986) 805 F.2d 1258, 1261.) With respect to furnishers of information to consumer credit reporting agencies, like UDR and First Advantage Corporation, section 623 of the FCRA imposes two general requirements: the duty to 764*764 provide accurate information (15 U.S.C. Â§ 1681s-2(a))[12] and the duty to investigate the accuracy of reported information upon receiving notice of a dispute (15 U.S.C. Â§ 1681s-2(b)).[13] To trigger the latter set of duties, however, notice to the furnisher of information must be given pursuant to section 611(a)(2) of the FCRA (15 U.S.C. Â§ 1681i(a)(2)), which requires a consumer credit reporting agency to reinvestigate the current accuracy of information in its files after being notified by the consumer of a dispute and to notify the person who furnished it with the information about the dispute. That is, to activate the duties imposed by section 623(b) of the FCRA, notice of the dispute must come to the furnisher of the information (UDR) from the credit reporting agency (Experian), not directly from the consumer (Mr. Sanai) himself. (Young v. Equifax Credit Information Services, Inc. (5th Cir. 2002) 294 F.3d 631, 639-640.) "This means that a furnisher of credit information... has no responsibility to investigate a credit dispute until after it 765*765 receives notice from a consumer reporting agency. Under the statutory language notification from a consumer is not enough." (Stafford v. Cross Country Bank (W.D.Ky. 2003) 262 F.Supp.2d 776, 784; accord, Rollins v. Peoples Gas Light and Coke Co. (N.D.Ill. 2005) 379 F.Supp.2d 964, 967; Elmore v. North Fork Bancorporation, Inc. (S.D.N.Y. 2004) 325 F.Supp.2d 336, 340.)” Sanai v. Saltz

Given that there are five tradelines which were disputed because of the exact same incomplete, inaccurate, and unverifiable information, and there were at least four instances where the United States Department of Education provided incomplete, inaccurate, and unverifiable information because of their failure to properly perform an investigation regarding the disputed information, or by failing to properly modify or delete the disputed information pursuant to 15 U.S.C. Â§ 1681s-2(b).

Given that the information was disputed on 03/31/2012, and improperly investigated and failed to properly be modified or deleted as required under 15 U.S.C. Â§ 1681s-2(b), this is five violations of 15 U.S.C. Â§ 1681s-2(b).

Given that the information was disputed on 04/29/2012, however TransUnion improperly refused to investigate the dispute due to the United States Department of Education’s previously improperly performed investigation.

Given that the information was disputed on 05/07/2012, and improperly investigated and failed to properly be modified or deleted as required under 15 U.S.C. Â§ 1681s-2(b) , this is five additional violations of 15 U.S.C. Â§ 1681s-2(b).

Given that the information was disputed on 05/24/2012, and improperly investigated and failed to properly be modified or deleted as required under 15 U.S.C. Â§ 1681s-2(b), this is five additional violations of 15 U.S.C. Â§ 1681s-2(b).

Given that the information was disputed on 06/08/2012, however TransUnion improperly refused to investigate the dispute due to the United States Department of Education’s previously improperly performed investigation.

It will only be through the discovery process that it can be determined whether or not TransUnion asked for, and whether or not the United States Department of Education verified the tradelines in the 04/29/2012 and 06/08/2012 disputes. If TransUnion did ask for, and the United States Department of Education verified the tradelines, each instance would be an additional five violations of 15 U.S.C. Â§ 1681s-2(b).
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jam237 · Dec 6, 2012

Answer to Motion to Dismiss - Part V

Injunctive Relief

One of the alternative resolutions requested to prevent the government from continuing to refuse to comply with the law, which it has through its briefings made apparent that it holds in contempt and complete disregard by defending its continued willful and knowing violations of under the guise of Sovereign Immunity.

However, injunctive relief was not the only alternative resolution which was requested. The second was a simple court order which simply states that the accounts which are being reported by the United States Department of Education are being reported with incomplete, inaccurate and unverifiable information. With said court order, the Credit Reporting Agencies would have a finding of fact determining that the data furnisher is unreliable under Cushman v. TransUnion, thus the incomplete, inaccurate, and unverifiable information would be able to be deleted directly by the Consumer Reporting Agency since the court having done discovery, and a complete investigation of the facts in the matter has performed an investigation which courts have ruled to be too onerous for a Consumer Reporting Agency to perform, itself.

“Nevertheless, MBNA urges that “Congress intended to impose a more rigorous duty of investigation on CRAs than on furnishers of information.” But MBNA does not tell us why Congress would mandate shoddy or superficial furnisher investigations, not calculated to resolve or to explain the actual disagreement or to aid in the CRA’s “reasonable reinvestigation.” Indeed, as the statute recognizes, the furnisher of credit information stands in a far better position to make a thorough investigation of a disputed debt than the CRA does on reinvestigation. With respect to the accuracy of disputed information, the CRA is a third party, lacking any direct relationship with the consumer, and its responsibility is to “reinvestigate” a matter once already investigated in the first place. Â§ 1681i(a)(1) (emphasis added). It would therefore make little sense to impose a more rigorous requirement on the CRAs than the furnishers. Instead, the more sensible conclusion is that, if anything, the “reasonable” qualifier attached to a CRA’s duty to reinvestigate limits its obligations on account of its third-party status and the fact that it is repeating a task already completed once. Requiring furnishers, on inquiry by a CRA, to conduct at least a reasonable, non-cursory investigation comports with the aim of the statute to “protect consumers from the transmission of inaccurate information about them.” Kates v. Crocker Nat’l Bank, 776 F.2d 1396, 1397 (9th Cir. 1985)” Gorman V. Wolpoff & Abramson

As courts have ruled that a dispute requiring extensive review of the facts as being too onerous for the Consumer Reporting Agency to be able to perform, and the United States Department of Education repeatedly willfully and knowingly disregarded its obligations to thoroughly investigate, and modify or delete the disputed tradelines, only through providing to the Credit Reporting Agencies an order adjudicating the data being reported by the United States Department of Education as incomplete, inaccurate or unverifiable can the tradelines be reinvestigated properly by TransUnion, and resolve the ongoing damage that the United States Department of Education is inflicting upon the plaintiff by its willful and knowing verification of incomplete, inaccurate and unverifiable information.
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jam237 · Dec 11, 2012

The new magistrate realized that TU was never served, yet, and ordered service.

Now let the fun begin.

mindcrime · Dec 12, 2012

jam --

if a consumer is suing an OC for FCRA violations and the OC is located in another state (far away at that), what court is used, federal?

jam237 · Dec 12, 2012

Federal for federal questions. FDCPA/FCRA qualify as federal questions. Keep in mind the standard, I am not an attorney, and I don't play one on TV disclaimer. I am not providing legal advice.

If you look at the local federal court website for the civil cover sheet, it provides examples of why federal court could be the proper jurisdiction.

mindcrime · Dec 14, 2012

I believe I found it:

http://www.paed.uscourts.gov/documents/forms/frmcgen.pdf

A lot to complete, did you have to hand-write yours too?

jam237 · Dec 15, 2012

Some courts have a pdf version that's fillable, but it's just as easy to hand-fill it.

jam237 · Dec 15, 2012

Court Forms by Category

JS-44 is the cover sheet.

jam237 · Dec 20, 2012

Just received the government's Memorandum of Law in support of their motion to dismiss...

You gotta love their persistence...

Jason, is there an easier way to post 10 pages of my amended answer as opposed to approximately 7 or 8 posts?

jam237 · Jan 22, 2013

Would a reply such as...

I am glad that defendant TU knows their corporate name, the fact that they lack sufficient knowledge to amswer anything else proves that defendant did not maintain adequite precautions to ensure comploance with the FCRA.

Be too snarky?

mindcrime · Jan 22, 2013

Straight to the point.

jam237 · Jan 22, 2013

I am going to have fun not getting sarcastic, when every paragraph is TU states that it lacks knowledge or information at this time sufficient to form a belief about the truth of these allegations.

Yet if WE answer a DCA with those blanket denials, we're deadbeats...

mindcrime · Jan 22, 2013

So right Jam.

Oh yes, but of course! whenever a business can't produce, its 'accepted'.

When a consumer can't we're in the wrong.

jam237 · Jan 23, 2013

I wonder what their council's response will be when I essentially answer their answer with the (a) report number issued by TU, yes they lacked sufficient knowledge to know whether they issued a credit report. (b) the 'results' of the first investigation which was completed online, yes they lacked sufficient knowledge to know whether they received a dispute, and whether they answered the dispute. (c) the copies of the time-stamped faxes as they received them, (you know the sentences that are to follow for all 5 of the disputes there).

mindcrime · Jan 23, 2013

So basically....you've got them by the (you know what) and they're trying every last thing they can think of to get out.

jam237 · Jan 24, 2013

So here's my attack on the USDoE.

MOTION TO STRIKE A PORTION OF THE UNITED STATES DEPARTMENT OF EDUCATION’S REPLY IN SUPPORT OF THE UNITED STATES DEPARTMENT OF EDUCATION’S MOTION TO DISMISS

In the defendants, United States Department of Education, Reply in Support of the U.S. Department of Education’s Motion to Dismiss, the government attempts to create a new “motion to dismiss” on the grounds that “The FCRA Does Not Provide for Declaratory Relief”. (pages 7-8)

The government failed to properly state said motion to dismiss in the original motion to dismiss, thus as the government’s attorney pointed out, procedure does not allow this amendment in this stage of motions, as the plaintiff does not have a procedural opportunity to answer this new motion to dismiss.

Therefore, plaintiff moves for the denial of the United States Department of Education’s Motion to Dismiss for Failure to State a Claim, based on the fact that a claim for declaratory relief was submitted, and was not objected to by the defendant, United States Department of Education in their original Motion to Dismiss.

Further, if the court denies this motion to strike the defenses’ late new grounds, plaintiff would request the court to create a new timetable for responding to this new grounds, in which plaintiff will point out (a) the case law cited by the defendant doesn’t deal with a party which is claiming sovereign immunity, therefore the precedent is distinct from the situation at hand, and (b) Krajewski v American Honda Finance Corp. et al., states that declaratory relief is at the discretion of the court, a court may decline to exercise that discretion when the claims are duplicative of other claims, however here, the defense is arguing that it is immune to any other form of resolution, therefore it is not duplicative in this matter.
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Bolded in their footnote they suggested that I was trying to backdoor an amendment to include another claim; well I call them on the same footnote in a much more polite way...

jam237 · Feb 12, 2013

PLAINTIFF’S RESPONSE TO DEFENDANT TRANSUNION’S ANSWER

First, Plaintiff requests to know whether the Defendant TransUnions council's statement regarding their Interrogatories applies to their answer to this suit. "if you, at any time, receive information which renders your answers (to these Interrogatories) incomplete, inaccurate or in any way misleading, you are required to supplement those answers accordingly."

Attorney’s for defendant TransUnion filed an answer with the court essentially denied everything (other than their client’s name) in this suit.

Given that they raise a number of different defenses including that their client is maintaining adequate safeguards to comply with the Fair Credit Reporting Act, the fact that their client cannot confirm the following information contained within this response is questionable.

In the first paragraph on 3 on page 1. TransUnion surely should be able to verify that in fact that “On March 31, 2012, plaintiff obtained a copy of his credit report from TransUnion” via their web site, said credit report had a file number of xxxxxxxxx.

TransUnion surely should be able to verify that “On said credit report, the plaintiff noticed numerous tradelines from the defendant, United States Department of Education. The accounts are listed with identical account numbers up until the masked portion of the account numbers, #xxxxxxxxxxxxx****”

Anyone who is even basically competent in mathematics could discern that an account could not have a total balance of $6,478; and at the same time have 36 monthly payments of $6,478 (which would total $207,296 a difference of 36 times the actual alleged balance). Paragraph 2. Each of the five accounts were off by the magnitude of 36 times at the time of the initial dispute.

Furthermore it is prima facea that reporting “DATA NOT AVAILABLE” is indicative that the data is unable to be verified, otherwise that data would, fact be available. Paragraph 2. Each of the five accounts were reporting the same unverifiable information.

Given that the reporting indicated that the data being disputed indicated that the data was not identifiable on the face of its records, the standards set under Westra require that the data furnisher complete a more thorough investigation.

Koropoulos v. The Credit Bureau, Inc. refused to distinguish whether or not the incomplete, inaccurate or unverifiable information needs to be technically incomplete, inaccurate or unverifiable. However, I would assert that the information is balance inaccuracy is technically inaccurate, and the inability to verify the alleged original creditor is technically unverifiable.

Defendant should be aware that on Saturday, March 31, 2012 at 12:06 PM, their web site processed a dispute, and generated a confirmation e-mail in response to the dispute of the account information in report number xxxxxxxxx. (Exhibit A)

Defendant should be aware that they allegedly performed that on Saturday, April 29, 2012 at 8:35 AM, their servers generated a confirmation e-mail that the dispute had been completed, and the results were available. (Exhibit B)

The fact that defendant TransUnion asserts that they cannot affirm this information is proof that they either are not maintaining adequate safeguards to ensure compliance with the FCRA, or are attempting to blatantly commit an act of fraud upon this court.
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Do you think they want me to continue?

mindcrime · Feb 12, 2013

Why don't they just give up....

You own them.

jam237 · Feb 13, 2013

According to the 60 Minutes piece, I can expect an unspecified amount of money, in about a year...

jam237 · Feb 21, 2013

Loves the smell of interrogatories in the evening.

P.S. You probably could love the diabolical laughter that was emanating when I read the following (especially given the answers that they've given).

"The following are deemed to be continuing Interrogatories, and therefore, if you, at any time, receive information which renders your answers to these Interrogatories incomplete, inaccurate or in any way misleading, you are required to supplement those answers accordingly."

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