LifeLock, the scam of a company, has hired Marvin Davis as its new Chief Marketing Officer. Davis is the former Vice President of Verizon Wireless. That's fitting. I've sued Verizon a couple of times in identity theft cases. Verizon has this strange, baseless notion that it need not comply with 15 U.S.C. 1681s-2(b)'s duty to reasonably investigate disputes lodged by a consumer with a credit bureau regarding a Verizon account if the consumer previously did not provide something to Verizon that Verizon requested.
In my case, my client was the victim of a fraud account opened by Verizon. The identity thief used my client's name and SSN to apply for a phone. Verizon pulled my client's credit report but did not bother to actually look at it (according to sworn testimony). If it had, Verizon should have noticed that the birth date given by the perp was completely wrong and that my client lived in North Carolina, not Illinois where the account was being opened. Alas, less than 10 seconds after the application was submitted, the perp had his shiny new fraud account.
My client learned of the fraud when, of course, the identity thief did not pay the $1000 or so in charges racked up on the cell phone. Verizon then was able to look at my client's credit report, realize he was stationed in North Carolina, and start trying to collect from him there. My client was in the military and set to be deployed to Afghanistan a few days after he first learned of the fraud account.
When he called Verizon to dispute the account, Verizon requested copies of his SSN card, driver's license, and a police report. My client provided the SSN card and driver's license but could not provide a police report. His local North Carolina police would not take a report, since the crime occurred in Illinois. And the Peoria, Illinois police would only take a report in person which, being on the way to war, my client was not able to do. My client told Verizon all this and even provided a statement from his superior officer that he was in North Carolina and never in Illinois where the account was opened. Verizon refused to listen and took the stance of "no police report, no correction".
After repeated phone calls to Verizon from Afghanistan (and even being hung up on once by a rude Verizon employee), my client disputed the fraud account to the three credit bureaus. Each of these bureaus relayed his disputes to Verizon, which triggered Verizon's duty to investigate pursuant to 1681s-2(b). Keep in mind that this duty to investigate is triggered even if my client had never contacted Verizon directly. What did Verizon do in response to the credit bureau disputes? Nothing. Nada. Zip. Verizon claimed that it did not have to investigate because my client had never provided a police report which he was not physically able to do (short of holding a gun to a cop and forcing him to do a report) and, of course, is not even required by the FCRA. The law is clear. Verizon had a duty to investigate.
Three credit bureau disputes later and still no investigation or correction. Finally, after being denied a home loan due to the Verizon fraud account on his credit report, my client found me and we filed suit. The lawsuit triggered something that nothing else had ... removal of the fraud account. And a confidential settlement approximately a year later.
Based upon the above, I am sure Marvin Davis will fit right in with LifeLock's shenanigans.
Custom Search
Showing posts with label 15 U.S.C. 1681s-2. Show all posts
Showing posts with label 15 U.S.C. 1681s-2. Show all posts
September 17, 2009
August 20, 2009
New FCRA case - Josey v. Sallie Mae, Inc.
A new case came out of the United States District Court for the Southern District of New York (which I am happy to say I have had a case or two in) on August 17, 2009. The case is styled Yolanda Josey v. Sallie Mae, Inc. and U.S. Dept of Education. The case is yet another attempt by a pro se plaintiff that fails miserably. When will people learn not to try to represent themselves.
Josey believed that Sallie Mae imposed an improper interest rate under the Higher Education Act, failed to properly credit Josey's account for payments she has made, falsely and inaccurately reported the loan balance to the big 3 credit bureaus, and violated her rights under the Debt Collection Improvement Act of 1996, her constitutional Due Process rights, right to notice of debtor's rights, and congressionally mandated consumer protections notice of student loan borrowers rights to different payment options and exemptions. I will focus only on the attempt at alleging an FCRA claim but, suffice it say, all the claims failed thanks in part to the lack of legal training of the plaintiff.
Josey would have been well served had she carefully read 15 U.S.C. 1681s-2(b), which requires notice of a dispute to a consumer reporting agency that is then relayed to the furnisher before any duty of the furnisher is triggered under the FCRA.
The Court found that "Josey, however, lacks standing under § 1681s-2(b) because she did not plead in her complaint (or even in her opposition to the instant motion) that Sallie Mae received notification from a consumer reporting agency regarding the accuracy of information furnished by Sallie Mae, as required under the FCRA. See, e.g., Ostrander v. Unifund Corp., 2008 WL 850329 at *3-4 (“[T]he court finds that plaintiff has failed to allege facts to state a plausible claim for relief under FCRA § 1681s-2(b)” because plaintiff did not plead that defendant data furnisher “received notice of the disputed information from a consumer reporting agency.”); Prakash v. Homecomings Fin., 2006 WL 2570900 at *3, 4-5 (“[P]laintiff lacks standing to bring his claims under the Fair Credit Reporting Act” where “nowhere in the complaint or opposition to the instant motion does plaintiff allege that defendant [data furnisher] received notice of the dispute from a credit reporting agency.”).
Furthermore, although Josey alleges that she “sent several notices” and “made phone calls” to Sallie Mae demanding it provide “several copies of documents including the original promissory note, terms and conditions of agreement, payment history and invoices” ... such actions, even if interpreted to constitute receipt of notice of disputed credit information by Sallie Mae, do not establish standing under the FCRA. In order to establish a private right of action under § 1681s-2(b), Josey must allege, which she has not, that a consumer reporting agency notified Sallie Mae."
Josey never disputed the error directly to the credit bureau or, if she had taken this step, she failed to allege that she had taken this step. All it took was an allegation that she had disputed the alleged error to one or more of the credit bureaus (who then would have relayed the dispute to Sallie Mae) to trigger Sallie Mae's duty to perform a reasonable investigation of the dispute pursuant to 15 U.S.C. 1681s-2(b).
Once again, this bad result could have been avoided by some competent representation by an attorney. People, please, if you need representation, send me an e-mail. If you have a decent case, either I will take it or refer you to a consumer attorney in your state who can represent you. I pretty much know a good consumer lawyer in every state, even Hawaii (but not Alaska, at least not yet).
Josey believed that Sallie Mae imposed an improper interest rate under the Higher Education Act, failed to properly credit Josey's account for payments she has made, falsely and inaccurately reported the loan balance to the big 3 credit bureaus, and violated her rights under the Debt Collection Improvement Act of 1996, her constitutional Due Process rights, right to notice of debtor's rights, and congressionally mandated consumer protections notice of student loan borrowers rights to different payment options and exemptions. I will focus only on the attempt at alleging an FCRA claim but, suffice it say, all the claims failed thanks in part to the lack of legal training of the plaintiff.
Josey would have been well served had she carefully read 15 U.S.C. 1681s-2(b), which requires notice of a dispute to a consumer reporting agency that is then relayed to the furnisher before any duty of the furnisher is triggered under the FCRA.
The Court found that "Josey, however, lacks standing under § 1681s-2(b) because she did not plead in her complaint (or even in her opposition to the instant motion) that Sallie Mae received notification from a consumer reporting agency regarding the accuracy of information furnished by Sallie Mae, as required under the FCRA. See, e.g., Ostrander v. Unifund Corp., 2008 WL 850329 at *3-4 (“[T]he court finds that plaintiff has failed to allege facts to state a plausible claim for relief under FCRA § 1681s-2(b)” because plaintiff did not plead that defendant data furnisher “received notice of the disputed information from a consumer reporting agency.”); Prakash v. Homecomings Fin., 2006 WL 2570900 at *3, 4-5 (“[P]laintiff lacks standing to bring his claims under the Fair Credit Reporting Act” where “nowhere in the complaint or opposition to the instant motion does plaintiff allege that defendant [data furnisher] received notice of the dispute from a credit reporting agency.”).
Furthermore, although Josey alleges that she “sent several notices” and “made phone calls” to Sallie Mae demanding it provide “several copies of documents including the original promissory note, terms and conditions of agreement, payment history and invoices” ... such actions, even if interpreted to constitute receipt of notice of disputed credit information by Sallie Mae, do not establish standing under the FCRA. In order to establish a private right of action under § 1681s-2(b), Josey must allege, which she has not, that a consumer reporting agency notified Sallie Mae."
Josey never disputed the error directly to the credit bureau or, if she had taken this step, she failed to allege that she had taken this step. All it took was an allegation that she had disputed the alleged error to one or more of the credit bureaus (who then would have relayed the dispute to Sallie Mae) to trigger Sallie Mae's duty to perform a reasonable investigation of the dispute pursuant to 15 U.S.C. 1681s-2(b).
Once again, this bad result could have been avoided by some competent representation by an attorney. People, please, if you need representation, send me an e-mail. If you have a decent case, either I will take it or refer you to a consumer attorney in your state who can represent you. I pretty much know a good consumer lawyer in every state, even Hawaii (but not Alaska, at least not yet).
July 04, 2009
New FCRA case - DiMedio v. HSBC Bank
Yet another case where the Plaintiff represented himself or herself ... poorly. This case was decided by District Judge Simandle for the United States District Court for the District of New Jersey.
The Plaintiff Ben DiMedio, representing himself, filed a lawsuit against HSBC, alleging violations of 15 U.S.C. 1681s-2(a) and 1681s-2(b) arising from some alleged errors surrounding charges and payments on his credit card with HSBC. HSBC moved to dismiss the Plaintiff's FCRA claims. Judge Simandle correctly dismissed the Plaintiff's 15 U.S.C. 1681s-2(a) claim because there is no private right of action for violations of this subsection (a) of 1681s-2. In other words, violations may only be enforced by certain governmental agencies, not private consumers (even though it is the private consumer who is injured and thus has the incentive to seek enforcement).
The Court also dismissed the Plaintiff's 15 U.S.C. 1681s-2(b) claims because, apparently, Mr. DiMedio did not fully appreciate the steps required to have been taken before a claim under 1681s-2(b) arises. 1681s-2(b) requires a furnisher of credit information (in this case HSBC) to investigate disputes lodged with the credit bureau(s) regarding the information furnished by the furnisher to the credit bureau. So in this case, DiMedio was required to dispute the erroneous account information not to HSBC (although its good to do that too) but directly to the credit bureau(s) reporting the erroneous information on DiMedio's credit report(s). This is called a 1681i dispute and is a prerequisite to a claim under 1681s-2(b). Because DiMedio did not follow the requirements of 1681s-2(b) before filing suit, Judge Simandle correctly dismissed DiMedio's 1681s-2(b) claim as well.
Dismissal could have easily been avoided by simply understanding 15 U.S.C. 1681s-2(b), which is why DiMedio should have hired an attorney before filing his lawsuit.
The Plaintiff Ben DiMedio, representing himself, filed a lawsuit against HSBC, alleging violations of 15 U.S.C. 1681s-2(a) and 1681s-2(b) arising from some alleged errors surrounding charges and payments on his credit card with HSBC. HSBC moved to dismiss the Plaintiff's FCRA claims. Judge Simandle correctly dismissed the Plaintiff's 15 U.S.C. 1681s-2(a) claim because there is no private right of action for violations of this subsection (a) of 1681s-2. In other words, violations may only be enforced by certain governmental agencies, not private consumers (even though it is the private consumer who is injured and thus has the incentive to seek enforcement).
The Court also dismissed the Plaintiff's 15 U.S.C. 1681s-2(b) claims because, apparently, Mr. DiMedio did not fully appreciate the steps required to have been taken before a claim under 1681s-2(b) arises. 1681s-2(b) requires a furnisher of credit information (in this case HSBC) to investigate disputes lodged with the credit bureau(s) regarding the information furnished by the furnisher to the credit bureau. So in this case, DiMedio was required to dispute the erroneous account information not to HSBC (although its good to do that too) but directly to the credit bureau(s) reporting the erroneous information on DiMedio's credit report(s). This is called a 1681i dispute and is a prerequisite to a claim under 1681s-2(b). Because DiMedio did not follow the requirements of 1681s-2(b) before filing suit, Judge Simandle correctly dismissed DiMedio's 1681s-2(b) claim as well.
Dismissal could have easily been avoided by simply understanding 15 U.S.C. 1681s-2(b), which is why DiMedio should have hired an attorney before filing his lawsuit.
June 18, 2009
Another pro se case under the FCRA
Why is it that so many people think they can adequately represent themselves in Fair Credit Reportin Act litigation? This is by far the most complicated area of law that I have encountered in my ten years of practicing law. And this is the LAST area of law that I would recommend any non-lawyer trying to represent himself or herself.
Here's another case where a consumer represented himself - Pulliam v. American Express Travel Related Services Co., Inc., which was handed down by District Judge Matthew F. Kennelly of the United States District Court for the Northern District of Illinois, Eastern Division.
Representing himself, Pulliam alleged violations of the Fair Credit Reporting Act and the Fair Debt Collection Practices Act, as well as common law fraud, breach of contract, and intentional interference with prospective economic advantage. American Express moved to dismiss all the Plaintiff's claims.
Pulliam had an account with American Express. American Express offered to settle the amount owed on the account for less than the full value owed. Plaintiff took American Express on its offer and allegedly paid the settlement amount agreed upon.
The Plaintiff subsequently learned that American Express had a judgment against him. American Express had also reported three charged off accounts to the credit bureaus for inclusion on the Plaintiff's credit reports. The Plaintiff then disputed the American Express judgment and charged off accounts to the credit bureaus, among others. When American Express refused to correct the Plaintiff's credit report, the Plaintiff sued American Express alleging the claims listed above.
The Court correctly held that the facts do support a claim against American Express pursuant to 15 U.S.C. 1681s-2(a) and 15 U.S.C. 1681s-2(b) but also correctly held that there is no private cause of action for a violation of 15 U.S.C. 1681s-2(a). There is a private cause of action for American Express failing to perform a reasonable investigation pursuant to 1681s-2(b). The Court dismissed the Plaintiff's claims brought pursuant to 1681s-2(a) but allowed the Plaintiff's 1681s-2(b) claim to survive. The Plaintiff's 15 U.S.C. 1681b claim for American Express obtaining a copy of his credit report without a permissible purpose also survived because the Court correctly did not buy American Express' argument that the fact that the Plaintiff at one time had an open account with American Express gave American Express the right to pull the Plaintiff's credit report.
Suprisingly, American Express did not argue that the Plaintiff's state law claims were preempted by 15 U.S.C. 1681t(b)(1)(F). However, the Plaintiff's state law claims were dismissed for other grounds.
Overall, a good decision regarding the differences between a claim pursuant to 1681s-2(a) and one brought pursuant to 1681s-2(b).
Here's another case where a consumer represented himself - Pulliam v. American Express Travel Related Services Co., Inc., which was handed down by District Judge Matthew F. Kennelly of the United States District Court for the Northern District of Illinois, Eastern Division.
Representing himself, Pulliam alleged violations of the Fair Credit Reporting Act and the Fair Debt Collection Practices Act, as well as common law fraud, breach of contract, and intentional interference with prospective economic advantage. American Express moved to dismiss all the Plaintiff's claims.
Pulliam had an account with American Express. American Express offered to settle the amount owed on the account for less than the full value owed. Plaintiff took American Express on its offer and allegedly paid the settlement amount agreed upon.
The Plaintiff subsequently learned that American Express had a judgment against him. American Express had also reported three charged off accounts to the credit bureaus for inclusion on the Plaintiff's credit reports. The Plaintiff then disputed the American Express judgment and charged off accounts to the credit bureaus, among others. When American Express refused to correct the Plaintiff's credit report, the Plaintiff sued American Express alleging the claims listed above.
The Court correctly held that the facts do support a claim against American Express pursuant to 15 U.S.C. 1681s-2(a) and 15 U.S.C. 1681s-2(b) but also correctly held that there is no private cause of action for a violation of 15 U.S.C. 1681s-2(a). There is a private cause of action for American Express failing to perform a reasonable investigation pursuant to 1681s-2(b). The Court dismissed the Plaintiff's claims brought pursuant to 1681s-2(a) but allowed the Plaintiff's 1681s-2(b) claim to survive. The Plaintiff's 15 U.S.C. 1681b claim for American Express obtaining a copy of his credit report without a permissible purpose also survived because the Court correctly did not buy American Express' argument that the fact that the Plaintiff at one time had an open account with American Express gave American Express the right to pull the Plaintiff's credit report.
Suprisingly, American Express did not argue that the Plaintiff's state law claims were preempted by 15 U.S.C. 1681t(b)(1)(F). However, the Plaintiff's state law claims were dismissed for other grounds.
Overall, a good decision regarding the differences between a claim pursuant to 1681s-2(a) and one brought pursuant to 1681s-2(b).
Subscribe to:
Posts (Atom)
Posts
