FCRA (Fair Credit Reporting Act)

Equifax Stung With Huge Verdict for Inaccurate Credit Report

September 25, 2013 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

For many of us, our credit report is arguably the most important aspect of our financial lives. It can affect whether or not we receive a loan to buy a house or start a new business. It can even affect whether or not a potential employer decides to hire us. There are numerous companies in existence to provide us with access to our credit score so we can keep track of and control this important record. It is no wonder, therefore, that a person would take it very seriously if they found out that there were mistakes on their credit report.

That is exactly what happened to Julie Miller of Marion County, Oregon. Miller claims she made at least eight attempts between 2009 and 2011 to reach out to Equifax to correct errors she found on her credit report. Miller says she had done the same with two other credit reporting agencies and they had had no problems responding to her requests. For some reason though, Equifax allegedly refused to budge on the issue.

Miller’s complaint was far more serious than a mere misspelled name or an incorrect address. Her credit report allegedly contained credit accounts which she says she never opened, as well as debt collection attempts and a Social Security number which did not belong to her. Just one of these errors by itself would be enough to cause severe damage to anyone’s credit score, let alone all of them at once.

Miller’s attorney, Justin Baxter, told Oregon Live that these mistakes on her credit report resulted in “damage to her reputation, a breach of privacy and the lost opportunity to seek credit”. Baxter also said that Miller has a brother who is disabled and unable to get credit on his own. Because of these persistent errors on her credit report, Miller was unable to help him.
After spending years fruitlessly trying to get Equifax to correct the information on her credit report, Miller has finally received justice at the hands of the law. A long battle in federal court has recently resulted in an order for Equifax to pay Miller $18 million in damages. This is one of the largest awards in history against a credit agency.

While the court’s decision is undoubtedly a huge victory for Miller, the lawsuit provides an example of the very disjointed world of credit reporting in our country today. A recent report by the Federal Trade Commission found errors on the credit reports of as many as one in five consumers. Only 20% of people who disputed errors ever saw them corrected.

The frightening aspect of these allegations against Equifax is that Miller did everything she was supposed to do. Once she was aware of the problems on her credit report, she contacted all three credit bureaus to ask for the necessary corrections. She also asked them for copies of her credit report.

Obviously, the goal behind these kinds of lawsuits is not only the award in damages for the plaintiffs, but to encourage credit bureaus to take complaints from customers seriously. Whether or not that goal has been achieved here has yet to be determined. At the moment, Equifax is preparing to appeal the verdict.

Class Certification Granted in Lawsuit Brought by Identity Theft Victim Against Credit Reporting Agency – Osada v. Experian

July 28, 2013 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

A consumer sought to certify two classes in a lawsuit against a credit reporting agency, after the agency allegedly refused to remove negative information from his credit report that was the result of identity theft. The lawsuit asserted various claims under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. The court certified one of the two classes in Osada v. Experian Information Solutions, Inc., No. 11 C 2856, slip op. (N.D. Ill., Mar. 28, 2012), finding that it met the requirements contained in Rule 23 of the Federal Rules of Civil Procedure.

According to the court’s opinion, the plaintiff learned in late 2008 that unknown parties had taken out two mortgage loans in his name in a total amount greater than $600,000. He contacted the defendant, Experian, regarding how the fraudulent loans would affect his credit report. He also filed a police report, but did not send a copy to Experian. When each mortgage eventually went into foreclosure, the courts handling those matters reportedly realized that identity theft was a factor. The plaintiff submitted an identity theft affidavit to the Federal Trade Commission (FTC) in late 2009 and wrote to Experian in early 2010 requesting removal of the mortgages from his credit report. He attached the FTC affidavit, the police report, and proof of residence to his request.

Illinois Federal Court Finds Putative Class Action Precluded by Arbitration Agreement – Collier v. Real Time Staffing Services

June 7, 2013 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

A putative class action alleging violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (FCRA), must be submitted to binding arbitration, according to the court in Collier v. Real Time Staffing Services, Inc., No. 11 C 6209, memorandum opinion and order (N.D. Ill., Apr. 11, 2012). The court found that a clause in the contract between the plaintiff and defendant required both parties to submit any disputes between them to arbitration. On the question of whether the class claims asserted by the plaintiff were subject to mandatory arbitration, the court left it for the arbitrators to decide.

The plaintiff, Darion Collier, submitted an electronic job application to the defendant, Real Time Staffing Services, which did business as SelectRemedy. According to the court’s order, the plaintiff signed an acknowledgment that said his employment with SelectRemedy would begin once he started an assignment for one of its clients, and that it would be on an “at-will” basis. The acknowledgment further said that SelectRemedy could at any time modify the terms and conditions of his employment. Order at 2. SelectRemedy did not hire the plaintiff after reviewing his application, allegedly based on information in his consumer credit report.

The plaintiff filed suit on September 7, 2011, alleging violations of the FCRA on behalf of himself and a proposed class. SelectRemedy filed a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that an arbitration agreement signed by the plaintiff with his application precluded the lawsuit. The agreement stated that the plaintiff agreed to submit any disputes to binding arbitration in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA). In opposing the motion to dismiss, the plaintiff argued that the arbitration agreement was unenforceable for lack of consideration, that SelectRemedy’s ability to change the terms of employment rendered the contract illusory, and that the arbitration agreement should not cover class claims.

FTC Study Shows That up to 40 Million Americans Have a Mistake in Their Credit Report — Watch the 60 Minutes Investigation of This Ongoing Problem

February 11, 2013 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

The Consumer Law and Policy Blog has “reported many times on the error-prone credit reporting industry and the industry’s violations of the Fair Credit Reporting Act. Go, for example, here, here, and here.”
Today, the Federal Trade Commission issues a eight-year study of the industry showing that up to 40 million Americans have a mistake on their credit report. Twenty million have serious mistakes. Last night, 60 Minutes aired a report on the FTC’s study and its “own investigation of the credit reporting industry [that] shows that … mistakes can be nearly impossible to get removed from your [credit] record.”

Legal Credit Repair — Our Chicago Consumer Attorneys Bring Suit Under the Fair Credit Reporting Act

June 17, 2010 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Our Naperville, Illinois consumer rights private law firm handles individual and class action predatory lending, unfair debt collection, lemon law and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. The Chicago consumer lawyers at Lubin Austermuehle are proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

Our Joliet consumer attorneys provide assistance in fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago consumer rights attorneys who can assist in lemon law, unfair debt collection, predatory lending, wage claims, unpaid overtime and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

You can view our Oak Brook and Chicago attorneys listings on Super Lawyers. Super Lawyers only selects 5% of the attorneys in the State to receive the Super Lawyer designation.

Court Rules Claim for Negligent Online Security Against Bank May Go Forward

February 24, 2010 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

As Illinois consumer protection attorneys, we were pleased to see that an Illinois federal court has allowed a couple to continue a claim against their bank over a complex billing dispute. David Johnson’s Digital Media Lawyer Blog reported Sept. 2 on the case brought by Marsha and Michael Shames-Yeakel, a couple from Indiana who had $26,500 stolen from their home equity line of credit. Citizens Financial Bank held them liable for the loss, but they refused to pay. In response, the bank reported the “bad debt” to credit bureaus and threatened to repossess their home. The Shames-Yeakels sued Citizens. Shames-Yeakel v. Citizens Financial Bank, U.S.D.C., Northern District of Illinois, Case No. 07-c-5387.

According to a ruling posted by Wired (PDF), the Shames-Yeakels run an accounting and computer programming business out of their home. They had a business checking account as well as personal accounts and a home equity line of credit with Citizens, where they were customers for nearly 30 years. The HELOC was connected to their business checking account, but the four advances they took paid for personal expenses or expenses that mixed personal and business use, such as a new roof for their home, which includes their home office. In early 2007, an unknown person gained access to the HELOC and transferred the $26,500 to their business checking account, then eventually to a bank in Austria. They were unable to have the money returned, and Citizens held the Shames-Yeakels liable for the loss.

The Shames-Yeakels complained to Citizens, but to no avail; the bank pointed to language releasing it from liability in their online banking agreement. They also complained to the federal Office of Thrift Supervision, which said Citizens’ actions were legal. The Electronic Funds Transfer Act doesn’t protect HELOCs, it said, and the Truth in Lending Act covers only personal, not business, accounts. It found that the HELOC was a business account because it was linked to a business checking account. The Shames-Yeakels sued Citizens for violations of the Truth in Lending Act, the Fair Credit Reporting Act, the Electronic Funds Transfer Act, the Indiana Uniform Consumer Credit Code and common-law negligence and breach of contract.

Citizens then moved for summary judgment, the basis for the ruling at hand. U.S. District Judge Rebecca Pallmeyer granted summary judgment on the count relying on the Electronic Funds Transfer Act and restricted plaintiffs’ use of the Fair Credit Reporting Act. However, she denied it as to negligence and the Truth in Lending Act. The Digital Media Lawyer Blog, and Wired, focused on the negligence claim, which argued that the bank provided inadequate online security. Citizens employed a widely used contractor named Fiserv to protect its accounts with a simple username and password. The Shames-Yeakels argued that Citizens should have used a multi-layered security system using a “token” that provides additional verification. They also cited security experts suggesting such a system as early as 2005 and said Citizens failed to warn them of known security risks.

In her analysis, the judge started by reminding readers that summary judgment seeks only to decide whether there’s a genuine issue of material facts at hand. In the case of the negligence claim, she found that there was. In Indiana and many other states, courts have found that banks have a duty to protect customers’ confidential information. “If this duty … is to have any weight in the age of online banking,” she wrote, “then banks must certainly employ sufficient security measures to protect their customers’ online accounts.” She found the evidence presented about multi-layered security measures, and reports warning Citizens to use these measures, sufficient to require a trial, but warned the plaintiffs not to make arguments relying on the discarded causes of action.

The judge also rejected Citizens’ arguments for summary judgment on the TILA claim, which was based on their claim that the HELOC was for business purposes. Noting that caselaw requires judges to look at the substance rather than the form of transactions, she found that “Plaintiffs’ use of their home equity line of credit appears overwhelmingly personal in nature.” This is enough to survive summary judgment and require a proper trial, she found. She also found partially for the Shames-Yeakes on their Fair Credit Reporting Act claim. Because Citizens reported the debt as delinquent but failed to note that the debt was disputed, it may have violated the FCRA. However, she rejected the couple’s argument that Citizens failed to make reasonable investigations of their credit reporting disputes, and granted summary judgment on that claim only.

Seventh Circuit Rules Class Action Objectors Cannot Collect Damages for Privacy Breach Under FCRA or State Consumer Protection Law

April 26, 2009 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

In a long-running consumer privacy violation case, the Seventh U.S. Circuit Court of Appeals has denied damages to a group of homeowners whose mortgage company sold their information to telemarketers. In Mirfasihi v. Fleet Mortgage , No. 07-3402 (7th Cir. Dec. 30, 2008), Fleet Mortgage Company sold information on 1.6 million clients to telemarketers, without those clients’ permission. Two nationwide classes were certified: a class of people who bought products from the telemarketers (who used deceptive practices in their sales) and a class of people who merely had their information shared. This appeal comes from the latter group, some of whose members objected to a proposed settlement that gave them no damages.

In its analysis, written by Judge Posner, the court started by agreeing with the appellants that their claims may have some value under state consumer protection laws, despite the trial court’s conclusion that they did not. Many state statutes allow statutory damages even when no actual harm is present. However, the majority wrote, the information-sharing class had no claim in a class action — only in individual actions. And no individual plaintiff has demonstrated a willingness to sue for the “modest statutory damages” available under state laws, despite eight years of litigation and two prior appeals to the Seventh Circuit, the judge wrote.

The court turned next to the objectors’ claims under the federal Fair Credit Reporting Act (FCRA), which allows statutory damages of $100 to $1,000 per willful violation, even if no actual harm resulted from the violations. This claim also failed, because class members had not brought it up until their second round in trial court. Furthermore, the majority wrote, the FCRA claim is frivolous because Fleet is not a consumer reporting agency, as the law requires; agencies that merely pass on information about debts owed to it are not covered by the law. And under the FCRA, a report on transactions only between the customer and the agency making the report is specifically excluded from the definition of a “consumer report.”

FTC “Consumer Sentinel” Database Relies on Individual Consumer Complaints to Monitor and Stop Consumer Fraud

February 22, 2009 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

If you believe you are the victim of a consumer fraud or scam that is harming many other individuals you should file a report with the Federal Trade Commission. The FTC maintains a Consumer Sentinel database which can be used by law enforcement authorities all over the world to fight consumer fraud. Click here if you want to learn more about that database or want to make a complaint with the FTC.

The FTC has this to say about its Consumer Sentinel database:

Your complaints can help us detect patterns of wrong-doing, and lead to investigations and prosecutions. The FTC enters all complaints it receives into Consumer Sentinel, a secure online database that is used by thousands of civil and criminal law enforcement authorities worldwide. The FTC does not resolve individual consumer complaints.

Best Websites to Learn About Consumer Law Issues — Our DuPage and Cook County, and Chicago Consumer Lawyers Can Assist You in Your Lemon Law, Auto and RV Fraud, Unfair Debt Collection, Unfair Wage Practices Claims and Other Consumer Rights Lawsuits

February 1, 2009 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

One of the best websites to learn about consumer law issues and to find lawyers who focus on consumer rights issues is the website of the National Association of Consumer Advocates.

The website contains numerous links to sections on Auto Fraud, Lemon Law, Predatory Lending Practices, Credit Reporting Problems and Debt Collection Abuse.

Class action lawsuits our firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. Lubin Austermuehle is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from corporate misdeeds.

Best Websites to Learn About Consumer Law Issues — Our Chicago Consumer Attorneys Can Assist You in Your Internet Fraud, Lemon Law, Auto and RV Fraud, Unfair Debt Collection, Unfair Wage Practices Claims and Other Consumer Rights Lawsuits

January 5, 2009 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

The National Consumers League’s Fraud Center is one of the best informational websites on the internet to learn about consumer rights and protection issues. Informed consumers are best armed to protect themselves from consumer scams and consumer frauds. The website contains sections for Telemarketing Fraud, Internet Fraud, Scams Against Businesses, Scams Against Elderly, Counterfeit Drugs, and a Fraud News section.

Lubin Austermuehle is a private consumer rights law firm who associates with other law firms around the country that can help you recover funds lost due to fraud against brick and mortar companies in the United States with assets. All too often with many internet and telemarketing frauds this may not be possible as the scam artists may be overseas, hard to locate or without assets.

Class action lawsuits our firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. Lubin Austermuehle is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from corporate misdeeds.