Tuesday, May 12, 2009
Collection Hard Pulls
This is a real story....
This case was fairly easy to win because of my hard work and effort in researching and knowing California law. But California law is almost identical to the FCRA so anyone can sue from any state, but you usually would have to sue in Federal Court unless your state has the same provisions as California law and the FCRA that allows for damages if they do to you what they did to me.
Okay, about the suit. My argument was very straight forward. Any inquiry that is ever put into your hard inquiry section is an inquiry that is done by a creditor that is stating that "so and so consumer is requesting additional credit from me, the creditor". However, if a creditor of us, the debtors, is simply doing an account review, whether or not for collection purposes or not, then the inquiry is gonna go into the soft inquiry section of your credit report. Now, the reason for this is simple. California law and the FCRA states that any request for a credit file that is not the result of a credit transaction of the consumer must not be seen by anyone besides the consumer. Because of that the CRA's must know the exact reason for the pursose of the credit file pull at the time of the credit report pull. Both California law and the FCRA state that the person doing the pull must certify the use of the credit report and certify that it won't be used for any other purpose. Therefore if they certify that you're taking out additional credit, but you are not, then they would in fact be in violation simply because they are using it for a purpose other than was has been certified by them and the end result is usually a lowering of your credit score which was exactly what my former creditor was trying to do. This is true even if they have a permissible purpose for a report, such as for you having an account with them.
I had defaulted on a loan with them, unfortunately, and as a result for the next 36 months they were pulling credit reports as hard pulls at least once a month. They were trying to keep my score low so I would be forced to pay off the deficiency balance. Also, they did a soft pull two weeks after my bankruptcy date.
They tried to argue that they had a permissible purpose for the credit report pulls, which I conceded to and figured they would argue for. However, as I said, and the judge agreed, they have a responsibility to report the correct purpose for the pull so that they do not violated my rights and attempt to harm my credit score. It was great because I had all parts of the California Civil code in hand and quoted directly from them in my argument which went off like a charm. I was so happy.
The judge found for me for the amount of 5000 which is the maximum amount of California law.
This is a big victory for California consumers. If anyone from anywhere wants to hear once again my entire argument and my quotes from the law, just shoot me off a pm.
Oh, and to my critics. ner ner ner ner ner ner
I will post a copy of the judgment as soon as it arrives in the mail.
Reply With Quote
When you apply for credit to enter into a credit agreement, a creditor(and later if you default, a collection agency) has a permissible purpose to pull your report. They can do so at any time but they still have to certify the purpose of the credit pull as stated here...
http://www.ftc.gov/os/statutes/fcra.htm#607
§ 607. Compliance procedures [15 U.S.C. § 1681e]
(a) Identity and purposes of credit users. Every consumer reporting agency shall maintain reasonable procedures designed to avoid violations of section 605 [§ 1681c] and to limit the furnishing of consumer reports to the purposes listed under section 604 [§ 1681b] of this title. These procedures shall require that prospective users of the information identify themselves, certify the purposes for which the information is sought, and certify that the information will be used for no other purpose. Every consumer reporting agency shall make a reasonable effort to verify the identity of a new prospective user and the uses certified by such prospective user prior to furnishing such user a consumer report. No consumer reporting agency may furnish a consumer report to any person if it has reasonable grounds for believing that the consumer report will not be used for a purpose listed in section 604 [§ 1681b] of this title.
As well as for here...
http://www.leginfo.ca.gov/cgi-bin/d...85.10-1785.19.5
1785.14. (a) Every consumer credit reporting agency shall maintain
reasonable procedures designed to avoid violations of Section 1785.13
and to limit furnishing of consumer credit reports to the purposes
listed under Section 1785.11. These procedures shall require that
prospective users of the information identify themselves, certify the
purposes for which the information is sought and certify that the
information will be used for no other purposes. From the effective
date of this act the consumer credit reporting agency shall keep a
record of the purposes as stated by the user.
As you can see, whether or not they have a permissible purpose, the law clearly states that they have to give the reason for the exact purpose of the credit pull. And California law even goes as far as to say that the CRA's have to keep a record of the purposes.
Now, if a creditor or even a collection agency states that they are pulling the report as a result of "a credit transaction initiated as a result of a consumer", but they are not, then it would be fair to say that they are pulling under false pretenses as stated here...
§ 616. Civil liability for willful noncompliance [15 U.S.C. § 1681n]
(a) 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
(1)(A) 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; or
(B) in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $1,000, whichever is greater;
and here...
1785.31. (a) Any consumer who suffers damages as a result of a
violation of this title by any person may bring an action in a court
of appropriate jurisdiction against that person to recover the
following:
(1) In the case of a negligent violation, actual damages,
including court costs, loss of wages, attorney's fees and, when
applicable, pain and suffering.
(2) In the case of a willful violation:
(A) Actual damages as set forth in paragraph (1) above:
(B) Punitive damages of not less than one hundred dollars ($100)
nor more than five thousand dollars ($5,000) for each violation as
the court deems proper;
(C) Any other relief that the court deems proper.
(3) In the case of liability of a natural person for obtaining a
consumer credit report under false pretenses or knowingly without a
permissible purpose, an award of actual damages pursuant to paragraph
(1) or subparagraph (A) of paragraph (2) shall be in an amount of
not less than two thousand five hundred dollars ($2,500).
The reason being that the CRA's are required to not display inquiries that are not the result of a credit transaction initiated by a consumer as found here...
§ 604. Permissible purposes of consumer reports [15 U.S.C. § 1681b]
(c) Furnishing reports in connection with credit or insurance transactions that are not initiated by the consumer.
(3) Information regarding inquiries. Except as provided in section 609(a)(5) [§ 1681g], a consumer reporting agency shall not furnish to any person a record of inquiries in connection with a credit or insurance transaction that is not initiated by a consumer.
And here..
1785.11.
(c) Except as provided in paragraph (3) of subdivision (a) of
Section 1785.15, a consumer credit reporting agency shall not furnish
to any person a record of inquiries solely resulting from credit
transactions that are not initiated by the consumer.
These provisions are what created the "soft inquiries" and "hard inquiries" sections of everyones credit reports with all three CRA's. Without them, all inquiries ever done by anyone requesting your credit report would be seen by everyone.
So, the key here is what exactly is the reason code for each credit pull. If it's the CRA's themselves that are placing the credit pull from the creditor into the "hard inquiry" section even though the creditor is submitting the pull as a "collection" pull or even an "account review" pull, then it's not the creditor's fault and you can't sue them. And if it's the CRA's fault, then you would sue them to make them stop. This would apply to what I was talking about in the other thread regarding "collection inquiries" being viewed by others.
This is taken from a previous post of mine at the other board. The part in italics is taken exactly from a standard Experian credit report. What they are admitting to is basically itself a violation. I go on to state............................................................................................
Requests viewed by others
The section below lists all who have requested in the recent past to review your credit history as a result of actions involving you, such as the completion of a credit application or the transfer of an account to a collection agency, mortgage or loan application, etc. Creditors may view these requests when evaluating your creditworthiness.
Just that alone, if it is a true Experian policy, and if carried out, is a violation of both the FCRA and California Civil Code, because if a creditor pulls your report for the purposes of a "transfer of an account to a collection agency", then that is not due to a transaction initiated by a consumer and the inquiry itself should not be included to anyone else besides you according to..
http://www.ftc.gov/os/statutes/031224fcra.pdf
FCRA § 604. Permissible purposes of consumer reports [15 U.S.C. § 1681b]
(3) Information regarding inquiries. Except as provided in section 609(a)(5)
[§1681g], a consumer reporting agency shall NOT furnish to any person a record of inquiries in connection with a credit or insurance transaction that is NOT initiated by a consumer.
If your friend does have an inquiry and it is due to collection activity whereby the pull is not a result of a transaction initiated by you and the inquiry itself is in the hard inquiry section whereby potential creditors pull your report and see it, then that would be a violation of the law and you could sue Experian for it. I know this for a fact as it is a matter of law. I do not know of anyone suing for it, though.
In my case, since it is the creditor that is misrepresenting the credit pull, my suit is against the creditor for pulling under false pretenses, but yours, or rather your friends, would be against Experian itself....................................................................................
Back to this thread. In my case with regards to my lawsuit, I had an auto loan that I defaulted on back in May of 2001. My former creditor started making hard inquiries about every month for three years. As you know they fall off after two years but I managed to sue on in March of this year a day before one of the inquiries was gonna fall off from 2003 . There was one more from September of 2003 so there were atleast two violations plus they did an account review pull two weeks after my bankruptcy discharge date in 2004. So I had those violations on my report. I called Experian to make sure that the hards were a result of my creditor falsely claiming that I was taking out additional credit back in 2001 and 2002 and so forth and an Experian customer service rep told me it was exactly that.....that my former creditor was certifying that I was taking out additional credit when I was not obviously, since I was in default. It doesn't take a rocket scientist to figure that out. lol
It's obvious to me that they were doing that to keep my credit score down so that I would be more inclined to pay off my deficiency loan with them. I owed about 6400 bucks or so. That's why they were doing it. I was only able to get 5000 and would have got more if the judge could have allowed, as he put it in his own words. There was a funny story the judge told when I talking about Experian. He said that his dad had recently passed and that he had found out that there was a negative on his report that was actually his dads and that he tried calling the CRA to get it removed but they wouldn't talk to him because they said they couldn't talk to him because he wasn't his dad. Everyone laughed in the courtroom.
Be that as it may, that was my argument.
Friday, April 17, 2009
Credit reporting agencies in trouble ?
A recent court order requires the three major credit-reporting bureaus -- Experian Group Ltd., Equifax Inc. and TransUnion LLC -- to clean up the credit files of millions of consumers who have filed for Chapter 7 bankruptcy. The problem: Old debts, which are typically forgiven by the courts in a bankruptcy filing, are still being reported as active on many consumers' credit reports.
The judge for the case, David O. Carter of the U.S. District Court for the Central District of California, has given the bureaus until Oct. 1 to revamp their systems. Experian and TransUnion say they have already updated their credit files to be compliant with the court order, while Equifax declined to comment. TransUnion also sent notices to some customers saying they "may experience a slight change" to their credit scores if any of their accounts are updated because of a bankruptcy.
The changes could be particularly important to borrowers now, as consumer credit tightens across the board. It is perhaps more important than ever for people to make sure their credit scores are accurate and as high as possible. This ruling is expected to clean up the credit files -- and potentially boost the credit scores -- of an estimated six million to 10 million people who have filed for Chapter 7 bankruptcy but still had errors in their files, according to plaintiffs' attorneys. Consumers with so-called zombie debt -- old loans they may have paid off years ago that can resurface when an aggressive debt collector erroneously demands payment -- are also likely to get some relief, if those debts also were discharged under Chapter 7 protection.
In many cases, old debts linger on credit reports if lenders don't update their records, or if collection agencies ignore the fact that debts were discharged in bankruptcy. The credit bureaus' new procedures should ensure that anyone who files for bankruptcy in the future will have more-accurate credit reports.
For consumers, credit-report inaccuracies can result in lower credit scores, credit denials and higher interest rates. "There's no question that having a Chapter 7 bankruptcy has a negative impact on your creditworthiness," says Michael Sobol, one of the plaintiffs' attorneys on the class-action case. "But when you have a bankruptcy, and you also have debts showing up as overdue and not paid -- that is a double hit."
Consumers will have to request a new credit report to see if any errors have been fixed, which they can do free of charge at www.AnnualCreditReport.com. Any errors should be reported to the credit bureaus, which usually have 30 to 45 days to verify or correct the information. If they can't verify the data, the item typically will be removed from the file.
Among those who are likely to benefit from the ruling is Gloria Conyers, a New York social-services counselor, who had been unable to get a mortgage because old credit-card debts kept popping up on her credit reports. "I thought all of that debt was gone," says the 57-year-old, who filed for Chapter 7 bankruptcy in 2004 with Charles Juntikka, one of the plaintiffs' attorneys. But when she started shopping for a mortgage this past summer, she was "shocked" to find out that her credit report showed that she still owed close to $20,000 from loans that should have been erased by her bankruptcy. "I was getting credit cards, so I assumed everything was OK," says Ms. Conyers.
Most consumers filing for bankruptcy continue to do so under Chapter 7 of the U.S. Bankruptcy Code. The provision allows consumers to erase credit-card, medical and many other debts -- but not alimony, child support, student loans or most taxes -- after certain assets such as savings are liquidated to benefit creditors. Under a Chapter 13 bankruptcy, on the other hand, less debt is forgiven. Individuals must work out a plan to pay off mortgage debt and other obligations over time -- usually three to five years.
The court order stems from a class-action lawsuit alleging that each of the credit bureaus violated the Fair Credit Reporting Act by failing to maintain reasonable procedures to assure the accurate reporting of debts that have been discharged in bankruptcy. The lawsuit could now move to a trial to determine liability and damages if Judge Carter decides later next month to give the damages portion of the case a class-action status.
The court-mandated changes come at a time when more consumers are filing for bankruptcy amid rising loan defaults and tighter credit standards. U.S. consumer bankruptcy filings jumped 29.2% to 96,413 in August, according to the American Bankruptcy Institute. That was the highest monthly level since October 2005, when the new federal bankruptcy law made it more difficult and costly for consumers to file for Chapter 7 protection.
Total bankruptcy filings are expected to exceed 1.1 million this year, according to the American Bankruptcy Institute, compared with 850,912 last year. (Typically, consumer filings have represented about 96% or more of total bankruptcies over the past decade.) Chapter 7 filings rose to 67.6% of total personal bankruptcies in the second quarter of 2008 from 56.1% as of the first quarter of 2006.
Consumer advocates and plaintiffs' attorneys say the ruling is significant because the credit bureaus will have to make wholesale changes to the way they report key information in bankruptcy filings. It used to be that the credit bureaus would remove pre-bankruptcy debts from consumers' credit files only if the creditors updated their accounts, says Daniel Wolf, one of the plaintiffs' attorneys. "Now, any debt that preceded the bankruptcy will automatically be reported as discharged" -- unless there is information in their files that indicates that the debts are nondischargeable or the creditor tells the bureau otherwise.
For their part, the credit bureaus say that their existing reporting systems -- which rely on data that are voluntarily provided by the banks, lenders and others -- are fair and accurate. "The reporting format provides a uniform process for data furnishers to provide data to consumer reporting agencies," says Norm Magnuson, a spokesman for the Consumer Data Industry Association, a trade group for consumer-data companies.
But consumer-advocacy groups, including the U.S. Public Interest Research Group, the Consumer Federation of America and Consumers Union, say that current reporting systems aren't as accurate as they should be and that errors in credit reports are common. Mr. Juntikka, the bankruptcy attorney, says his firm reviewed close to 3,000 credit reports for his clients who declared bankruptcy and found an error rate ranging from 64% to 76%, with many of those mistakes mischaracterizing discharged debts as still due.
Erica Noe of Burke, Va., says an old debt on her husband's credit file cost them their home -- in part because it prevented them from being able to refinance their interest-only adjustable-rate mortgage last year. Her husband, Kenneth, had filed for Chapter 7 bankruptcy in 2002; in that proceeding, the court discharged his prior debts. Nevertheless, they were unaware that a previous $7,000 credit-union loan remained on his report, pulling down his credit score for several years.
"We thought that once we filed for bankruptcy, it would go away," says Ms. Noe. "But it didn't. It affected everything." The 31-year-old nurse says they didn't find out about the error until they tried -- but failed -- to refinance their mortgage. When the rate reset, the Noes' monthly mortgage payments shot up by about $1,000; they lost their home to foreclosure last November. "It was a snowball effect," she says. "Unfortunately, everything just kind of worked against us at the same time.
"I tried to fix the error on the report by calling the credit union and telling them to stop reporting," she says. Currently, their lawyer, Robert Weed, is filing a separate lawsuit against Equifax and the credit union. Equifax declined to comment on an ongoing suit."
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