Credit Reporting

Inaccuracies on your credit report can stop your life in its tracks.  The Fair Credit Reporting Act gives consumers a road to recovery.

HOW DO I FIX INACCURATE INFORMATION ON MY CREDIT REPORT?

 “A poor credit history is the ‘Scarlet Letter’ of the 20th Century America.”  136 Cong. Rec. H5325-02 (daily ed. July 23, 1999) (statement of Rep. Annunzio) cited in Fed. Trade Comm’n v. Gill, 265 F.3d 944, 947 (9th Cir. 2001).

If you find yourself struggling with what to do about inaccurate credit information, know that you are not alone. According to a study by the Federal Trade Commission, one in five people have an error on at least one of their credit reports.  So great, there are a lot of people in your position.

But now what?

Do you have rights against the credit bureaus?

Is it possible to get this inaccurate credit reporting information fixed?

In short, you do have rights and you are able to fix this inaccurate information and you need to act now.

WHO ARE THE CREDIT BUREAUS?

The “big three” main credit bureaus are

EQUIFAX
P.O. Box 740256
Atlanta, GA 30374

Experian
P.O. Box 4500
Allen, TX 75013

Trans Union
P.O. Box 2000
Chester, PA 19016

However, there are hundreds of specialty credit bureaus that are also receiving information about you that might be inaccurate.  For example, ChexSystems is a credit bureau that gathers information about your checking accounts.  RentBureau will tracking your rent payments made to landlords.  Accurate Background even provides background checks for prospective employers.  These entities are electronically receiving thousands, or sometimes millions, of pieces of information from various furnishers every single month.  Unfortunately, this electronic transfer of information is fraught with issues and often leads to incorrect credit information being reflected on your credit report.  With all of this information about you floating around out there, what can you do to remedy inaccurate information?

WHAT ARE COMMON TYPES OF INACCURATE REPORTING?

The Consumer Financial Protection Bureau identified common errors on credit reports, such as:

 

Personal Information

  • Errors in your identity data, such as wrong name, phone number, or address
  • Accounts belonging to another person with the same or similar name to you
  • Incorrect accounts resulting from identity theft

Reporting of Account Status

  • Closed accounts reported as open
  • You’re reported as the owner of the account, when you’re just an authorized user
  • Accounts that are incorrectly reported as late or delinquent
  • Incorrect date of last payment, date opened, or date of first delinquency
  • Same debt listed more than once

Balance Errors

  • Accounts with incorrect current balance
  • Accounts with incorrect credit limit

Data Management Errors

  • Reinsertion of incorrect information after it was corrected
  • Accounts that appear multiple times with different creditors listed

WHAT LAWS CAN APPLY TO IDENTITY THEFT CLAIMS?

Various consumer protection laws can be utilized to help victims of identity theft.

For example, the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, or the Telephone Consumer Protection Act.  More specifically, California’s Identity Theft Act or common law intrusion upon seclusion as well.  Consumer attorneys often utilize a combination of many different consumer protection statutes in order to address each aspect of the fraud and interruption in your life.

The Fair Debt Collection Practices Act will address unfair debt collection practices in the form of collection letters, telephone calls, or a collection lawsuit.  The FDCPA was enacted because the United States Congress has found abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors, and has determined that abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.  Congress wrote the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq, to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

To be successful in such a claim, the following must be proven: to establish that Defendant violated the FDCPA, Plaintiff must show that: (1) Defendant was attempting to collect a “debt,” (2) Defendant is a “debt collector,” (3) Plaintiff is a “consumer,” and (4) Defendant violated at least one subsection of the FDCPA.  See Vanover v. Carruthers, No. SA CV 17-0196-DOC (DFMx), 2018 U.S. Dist. LEXIS 11877, at *6 (C.D. Cal. Jan. 24, 2018).

In California, the Rosenthal Fair Debt Collection Practices Act similarly acts to protect consumers from unfair debt collection practices. The California legislature has determined that the banking and credit system and grantors of credit to consumers are dependent upon the collection of just and owing debts and that unfair or deceptive collection practices undermine the public confidence that is essential to the continued functioning of the banking and credit system and sound extensions of credit to consumers.  The Legislature has further determined that there is a need to ensure that debt collectors exercise this responsibility with fairness, honesty, and due regard for the debtor’s rights and that debt collectors must be prohibited from engaging in unfair or deceptive acts or practices. See Cal. Civ. Code §§ 1788.1 (a)-(b).

The RFDCPA requires a consumer to prove the following: (1) Defendant was attempting to collect a “consumer debt”; (2) Defendant is a “debt collector”; (3) Plaintiff is a “debtor”; and (4) Defendant’s collection activities violated the FDCPA and thus the RFDCPA. See Cal. Civ. Code § 1788.17.

The Fair Credit Reporting Act will seek to remove fraudulent accounts from your credit as well as inquiries that occurred in connection with those accounts.  Congress enacted the FCRA “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.”

To be successful in such a claim, the following must be proven by the consumer “(1) Defendant is a ‘furnisher’; (2) Plaintiff notified the CRA that Plaintiff disputed the reporting as inaccurate; (3) the CRA notified the furnisher of the alleged inaccurate information of the dispute; (4) the reporting was in fact inaccurate; and (5) Defendant failed to conduct the investigation required by § 1681s-2(b)(1).” See Sanchez v. U.S. Bank Nat’l Ass’n, No. 8:18-cv-00500-JLS-KS, 2019 U.S. Dist. LEXIS 108692, at *9 (C.D. Cal. June 27, 2019)

The Telephone Consumer Protection Act can be utilized to put an end to automated telephone calls.  The TCPA prohibited the use of an ATDS to make “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to emergency telephone lines, hospital rooms or other health care facilities, and paging and cellular telephones.  Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1045 (9th Cir. 2018)

California’s Identity Theft Act – In enacting the California’s Identity Theft Act, Cal. Civ. Code §§1798.92 et seq. (“CITA”), the California Legislature found that the right to privacy was being threatened by the indiscriminate collection, maintenance, and dissemination of personal information. Accordingly, CITA was enacted to combat the lack of effective laws and legal remedies in place. To protect the privacy of individuals, it is necessary that the maintenance and dissemination of personal information be subject to strict limits. Cal. Civ. Code §1798.1(a), (c).

To recover a penalty for such a claim, the consumer must show that (1) that the consumer provided the business written notice at least 30 days before filing this case notifying the business that she was the victim of identity theft; (2) that the business failed to diligently investigate the consumer‘s identify theft claim; and (3) that the business continued to pursue its claim against the consumer despite “being presented with” facts sufficient to show that Ma was the victim of identity theft. Cal. Civ. Code. § 1798.93(c)(6).  See Ma v. Target Corp., No. SACV 17-01625 AG (JDEx), 2018 U.S. Dist. LEXIS 128902, at *12 (C.D. Cal. July 30, 2018)

Intrusion Upon Seclusion – Under California law, the elements for intrusion upon seclusion are: “‘(1) the defendant intentionally intruded, physically or otherwise, upon the solitude or seclusion, private affairs or concerns of the plaintiff; (2) [t]he intrusion was substantial, and of a kind that would be highly offensive to an ordinarily reasonable person; and (3) [t]he intrusion caused [the] plaintiff to sustain injury, damage, loss or harm.'” Joseph v. J.J. Mac Intyre Cos., 238 F. Supp. 2d 1158, 1169 (N.D. Cal. 2002) (citing CA BAJI 7.20) (emphasis added).

“To prove actionable intrusion, the plaintiff must show the business penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff.” Shulman v. Group W. Prod. Inc., 18 Cal. 4th 200, 232 (1998). To prove this tort, the plaintiff must prove she had an “… objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.” Id.

While many other statutes or theories can benefit victims of identity theft act, these core of statutes are more regularly utilized to address various aspects of the fraud.

WHAT ARE THE TYPES OF DAMAGES FOR CREDIT REPORTING ISSUES?

A successful lawsuit that fixes inaccurate credit reporting will allow to recover damages comprised of (1) actual damages; (2) punitive damages; and, (3) attorneys’ fees and costs.

  1. Actual Damages

Actual damages are split into two categories: (a) pecuniary loss; and, (b) emotional distress.

a. Pecuniary Loss

Pecuniary loss refers to the amount of out-of-pocket damages experienced by the consumer.  Such damages incurred as the result of inaccurate credit reporting can be credit denials, reduction in spending limits, the inability to purchase or refinance a home to name a few common categories. 

A claim for pecuniary loss asserts that the inaccuracy on the consumer’s credit report resulted in the consumer either receiving no credit or credit at an inferior interest rate than what the consumer otherwise would have qualified for if their credit history was accurately reported. With the assistance of an economist, these damages can become very high very quickly. For example, how much more will the consumer have to pay for their home financed through a 30-year mortgage if the interest rate they received as the result of the inaccurate credit report is 1% worse than what they should have qualified for?  This issue will force the consumer to pay more every single month for 30 years!

b. Emotional Distress

Consumers can seek to recover damages associated with stress, frustration, humiliation, sleepless nights, mental distress, loss of appetite, injury to reputation or creditworthiness, fights with loved ones, etc. that were incurred as the result of inaccurate credit reporting.  It is inherently difficult to quantify the value of these damages so the jury is left to decide what will make the consumer whole. How much is the stress, etc. worth? Is it $1? Is it $100,000 or more?

  1. Punitive Damages

Punitive damages are intended to punish the defendant and send a message to other similar entities.  In terms of inaccurate credit reporting claims, punitive damages will be imposed against the defendant if their conduct is found to be “willful.”  This term covers both intention conduct as well as actions taken in reckless disregard of the rights of the consumer.

  1. Attorneys’ Fees and Costs

The elephant in the room during many of our initial communications with prospective clients relates to our attorneys’ fees and costs. Fortunately, the consumer protection laws all allow for the successful consumer to recover their attorneys’ fees and costs from the defendant.

WHAT TYPE OF INFORMATION IS ON YOUR CREDIT REPORT?

Consumers often feel overwhelmed by the sheer amount of information that is contained within their credit reports since it is not uncommon for credit reports to be 50 or more pages.

These reports will usually start with a summary of your personal information – i.e., name; addresses; telephone numbers; date of birth; social security number; and, employers.

Next, you see information regarding specific accounts that are being reported.  Each account – or tradeline as referred to by the Credit Bureaus – will have an introductory section providing the name of the company, truncated account number, status, balances, and scheduled payments.

A detailed payment history will follow from there and is comprised of various short hand codes:

Equifax utilizes the codes in their payment history:

Experian’s codes are as follows:

Lastly, Trans Union’s codes:

If any reported information appears to be inaccurate, you will also find the address for the furnisher within the tradeline. As noted below, use this address to provide an explicit dispute with any supporting documents that are available. Keep in mind that if you are unclear or do not fully explain the inaccuracy, it is unlikely that the mark will be properly updated.

HOW DO I DISPUTE INACCURATE CREDIT INFORMATION?

If you find inaccurate information on your credit report, you should dispute the inaccuracies as soon as possible with both the furnisher (the bank, debt collector, or other entity associated with the account) as well as the Credit Bureau.  Addresses for the furnisher where disputes should be sent are often reflected on their billing statements but will also appear on the credit report itself within the disputed tradeline.

Disputes can be submitted to the Credit Bureaus online; by telephone, or through the mail as follows:

EQUIFAX
Online: investigate.equifax.com

Mail: Equifax Information Services LLC, P.O. Box 740241, Atlanta, GA 30374

Phone: (866) 349-5186

 

EXPERIAN
Online: experian.com/dispute

Mail: Experian, P.O. Box 9701, Allen, TX 75013

Phone: (855) 414-6047

 

TRANS UNION

Online: dispute.transunion.com

Mail: Trans Union Consumer Relations, P.O. Box 2000, Chester, PA 19016-2000

Phone: (800) 916-8800

Traditional mailed disputes are often the most effective and avoid technological issues associated with online submissions or processing delays that can occur with telephone disputes.

Once the preferred dispute method is determined, it is best to provide any and all possible information needed to explain why the information being reported is inaccurate AND how the information should be reported.  For example, does the disputed tradeline reflect that you were 30 or days late? If so, provide your monthly billing statements showing your payment deadline along with your bank statements that show that you made your payment on time. 

Another example, does the disputed tradeline inaccurately report that you owe a debt that was incurred in your name without your knowledge or consent? If so, provide documents such as a police report, an FTC Fraud Affidavit, and any additional documents that show you did not incur the debt at issue.

It is not enough to simply note your disagreement with the current reporting then leave it up to the Credit Bureau and furnishers to determine if it is accurate. Such a dispute invites a quick verification without much of a recourse in response. In addition, too many unsubstantiated disputes can cause the Credit Bureaus to determine that your dispute was “frivolous” which will adversely affect this and future disputes.  Full explanations and substantiating documents will help ensure proper updating of the tradeline in hopes that you can move on with your life and benefit from your credit.  In sum, the more the merrier for your disputes.

DO I NEED AN ATTORNEY TO HELP WITH CREDIT REPORT INACCURACIES?

This is a matter of personal preference.  Consumers certainly have the option to represent themselves without the assistance of an attorney.  Inaccurate credit reporting claims; however, often involve multiple defendants (i.e., the furnisher as well as any Credit Bureau that verified the inaccurate information) and these defendants are generally represented by multi-national defense firms.  The added complexities of Federal Court and internal coding of the respective defendants can cause confusion for even seasoned attorneys.  As such, consumers who have inaccurate information being reported to their credit may benefit from the assistance of counsel who have experience fighting such claims.  In addition, most consumer protection attorneys are able to prosecute claims of inaccurate credit reporting on a contingency basis which means that the consumer is not required to pay the attorney any fees or litigation costs.

HOW LONG DO I HAVE TO FIX INACCURATE CREDIT REPORTING?

Bad news never improves with age.  Like any legal issue, you will want to resolve credit reporting problems as soon as possible.  These issues only tend to get more difficult as time passes and you might even lose the right to challenge the inaccurate credit reporting if you wait too long.  This period to file a lawsuit is called the “Statute of Limitations.”  The federal Fair Credit Reporting Act requires a consumer to bring an action within the EARLIER of

          2 years after the date of discovery of the violation OR

          5 years after the violation occurs

This means on its most basic level that if you discovered the violation on May 1, 2020, you will have until May 1, 2022 to dispute the inaccurate reporting, receive a response from the Credit Bureaus (which can take up to 30 days or more as noted above), AND file your lawsuit.  This is a time-intensive process so you will want to start disputing the inaccurate credit information as soon as you are able.

WHAT DO I DO WITH THE RESPONSE TO MY CREDIT REPORTING DISPUTE?

The consumer will receive the furnisher’s response to their dispute either by U.S. Mail or e-mail.  This response is called the “reinvestigation results” within the industry and is transmitted to the consumer by the Credit Bureaus via U.S. Mail or e-mail.  As noted above, the consumer’s time to litigate a claim for inaccurate credit reporting is limited so the reinvestigation results should be reviewed immediately upon receipt.

The “reinvestigation” will typically result in the disputed information being verified; modified/updated; or, deleted.  If not deleted, is it time to consult an attorney? Perhaps an additional dispute with further information is warranted? These are considerations that should be discussed with counsel experienced in handling claims based upon inaccurate credit reporting.

WHAT DO I NEED TO PROVE IN ORDER TO WIN ON A CLAIM FOR INACCURATE CREDIT REPORTING?

The Fair Credit Reporting Act is a large statute with numerous sections that deal with impermissible access to your credit report, employment background checks, and inaccurate information on your credit report.  In terms of fixing inaccurate information on your credit report, the law requires that you satisfy the following prima facie elements:

Furnisher: To prevail on a FCRA claim against a furnisher for violation of 15 U.S.C. § 1681s-2(b), the plaintiff must “prove (1) Defendant is a ‘furnisher’; (2) Plaintiff notified the [Credit Reporting Agency] that Plaintiff disputed the reporting as inaccurate; (3) the [Credit Reporting Agency] notified the furnisher of the alleged inaccurate information of the dispute; (4) the reporting was in fact inaccurate; and, (5) Defendant failed to conduct the investigation required by [15 U.S.C.] § 1681s-2(b)(1).”. Robbins v. CitiMortgage, Inc., 2017 U.S. Dist. LEXIS 209367, at *13 (N.D. Cal. Dec. 20, 2017).

Credit Bureaus: To prevail on a FCRA claim for a violation of 15 U.S.C. § 1681e(b) against the Credit Bureaus, Plaintiff must “present evidence tending to show that a credit reporting agency prepared a report containing inaccurate information” while lacking reasonable procedures to avoid the inaccuracy.  Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995).

To prevail on a FCRA claim for a violation of 15 U.S.C. § 1681i against the Credit Bureaus, Plaintiff must prove that “(1) his consumer file contained prima facie inaccurate or incomplete information; (2) he notified Defendant of the alleged inaccuracy; (3) Defendant failed to respond or conduct a reasonable investigation of the disputed item; and, (4) Plaintiff suffered damages as a result of Defendant’s conduct.” Butler v. Equifax Info. Servs., LLC, No. EDCV18-2084 JGB (SHKx), 2019 U.S. Dist. LEXIS 96594, at *5 (C.D. Cal. Apr. 3, 2019).

But also do not forget that many States across the country have their own laws that regulate credit reporting.  The California Consumer Credit Reporting Agencies Act is virtually identical.  To prevail on a CCCRAA claim, the plaintiff “must prove that (1) Defendant is a ‘person’ under the CCCRAA, (2) Defendant reported information to a [Credit Reporting Agency]; (3) the information reported was inaccurate; (4) Plaintiff was harmed; and, (5) Defendant knew or should have known that the information was inaccurate.”  Sanchez, 2019 U.S. Dist. LEXIS 106892, at *13 citing to Robbins v. CitiMortgage, Inc., No. 16-CV-04732-LHK, 2017 U.S. Dist. LEXIS 209367, at *38 (N.D. Cal. Dec. 20, 2017); and, Cal. Civ. Code § 1785.25(a).  

By going through the dispute process outlined above, the only question for litigation any of these types of claims should be the reasonableness of the investigation and the damages sought to be recovered.

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