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Christine Baker
[deleted]
Fax: (571) 222-1000
Email: christine@bayhouse.com
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In Pro Per
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Christine Baker;
Plaintiff,
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v.
Fair Isaac and Company, et al;
Defendants.
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CIV-03-525-PCT-RCB
PLAINTIFF’S SUPPLEMENTAL
MEMORANDUM IN SUPPORT OF
HER OBJECTION TO THE
MERCHANTS INFORMATION
SOLUTIONS’ (CREDITDATA
SOUTHWEST) MOTION FOR
SUMMARY JUDGMENT
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Plaintiff Christine Baker hereby submits her Supplemental Memorandum in
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Support of her Objection to the Merchants Information Solutions (“MIS”) Motion for
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Summary Judgment.
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MEMORANDUM OF POINTS AND AUTHORITIES
A. Summaries of Plaintiff’s disputes and claims.
MIS falsely claimed that plaintiff’s Objection “demonstrates that the thrust of her
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lawsuit against MIS is that she disagrees with various status dates relating to accounts
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discharged through Baker’s 1996 bankruptcy that certain furnishers of information
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verified to MIS in response to reinvestigations.” While the reporting of the incorrect dates
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and balances and the reaging of the discharged accounts are a substantial part of
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plaintiff’s claims against MIS, her numerous other claims are just as important.
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Plaintiff strongly disagrees with the MIS legal conclusions [MIS Exhibit 22].
MIS is attempting to confuse the issues by listing various dispute cycles and plaintiff
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therefore presents her claims by account, explained in great detail in her 4/14/04
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Objection to the MIS Motion for Summary Judgment (hereafter “Objection”.)
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1) MIS failed to investigate and correct the Union Bank fictitious “past due”
notation [Objection, p. 5,6,7,8]
-- On 8/8/01 plaintiff disputed that she closed the account and not Union Bank. [MIS
Exhibit 2]
-- On 9/10/01 MIS inserted the derogatory and entirely fictitious “past due” notation.
[MIS Exhibit 3, p. 9]
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-- On 10/5/01 plaintiff disputed the derogatory “past due” notation. [MIS Exhibit 7]
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-- MIS failed to relay plaintiff’s dispute of the “past due” notation to Union Bank as
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required by 15 U.S.C. §1681i(a)(2). Apparently, MIS sent the 8/8/01 dispute again.
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[MIS Exhibit 9]
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-- On 10/30/01, Union Bank verified again that the account was “PAID SATIS” and
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“ACCOUNT CLOSED BY CONSUMER.” Plaintiff does not see any indication of any
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delinquency on the ACDV. [MIS Exhibit 9]
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-- On 10/30/01, the MIS investigation result states “remains” and MIS continued to
falsely report that the account was past due until payment in 8/01. [MIS Exhibit 8, p. 3,9]
According to the MIS exhibits presented to date, Union Bank never reported any
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past due balance. Discovery should reveal whether MIS added and then verified upon
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plaintiff’s dispute this entirely fictitious “past due” notation due to untrained personnel,
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due to defective software or intentionally to inflict damages on plaintiff.
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2) MIS failed to investigate the American Agencies fraudulent collection
[Objection, p. 6,7, Plaintiff’s Response to the MIS Statement of Facts p.17]
-- On 10/5/01 plaintiff disputed the American Agencies collection:
“American Agencies collection – not legit, please delete.” [MIS Exhibit 7]
-- On 10/30/01 MIS refused to investigate plaintiff’s dispute and falsely declared it
frivolous: “We are unable to process your request.” [MIS Exhibit 8]
-- On 12/10/01 plaintiff disputed the American Agencies collection again:
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“This collection is not a valid debt – please delete.” [Exhibit AQ-1]
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-- MIS admits that it received the dispute from Experian. [MIS Exhibit 24, p. 1]
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-- On 12/21/01 MIS again refused to investigate plaintiff’s dispute:
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“We are unable to process your request.” [Exhibit AQ-2]
MIS refused plaintiff’s factual disputes as “frivolous” and MIS claims that
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plaintiff failed to accept the MIS “invitation” to provide more specific information.
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Plaintiff provided ALL information necessary for MIS to identify the account and to
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relay the dispute to the furnisher as required by the FCRA. Because plaintiff couldn’t
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even open a checking account, she attempted to ensure that even the most untrained MIS
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employee would know exactly what to do: Plaintiff submitted a typed cover letter AND
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the annotated page of the MIS credit report with the account. Plaintiff’s disputes were as
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factual, clear and precise as possible.
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The MIS 10/30/01 notification of the dispute decline [MIS Exhibit 8] states:
”We are unable to process your disputes as they are not specific. If there is
any information appearing on a credit profile that is believed to be inaccurate
or incomplete, we must have a specific dispute. Examples of a specific dispute
are :
”not mine,” “paid in full,” “never delinquent,” “included in bankruptcy,” or
“incorrect status.” If the statuses, dates, amounts, balances or other specific
data is incorrect, you should also indicate what the correct information should
be. Please provide us with specific disputes and we will be happy to begin an
investigation.”
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NONE of the examples applied to plaintiff’s dispute. None of the MIS
suggested disputes contain more than 3 words. Plaintiff disputed: “Not legit, please
remove” and “[t]his collection is not a valid debt – please delete.” These disputes
were appropriate because they were factual and plaintiff requested that MIS delete the
collection. The other CRAs process identical and similar disputes as required by law.
MIS has offered absolutely no evidence to support its false claims that these factual
disputes were frivolous and that more information was indeed needed. Cushman v. Trans
Union Corp., 115 F.3d 220 (3d Cir. 06/09/1997):
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[28] If the completeness or accuracy of any item of information contained in
[her] file is disputed by a consumer, and such dispute is directly conveyed to
the consumer reporting agency by the consumer, the consumer reporting
agency shall within a reasonable period of time reinvestigate and record the
current status of that information unless it has reasonable grounds to believe
that the dispute by the consumer is frivolous or irrelevant. If after such
reinvestigation such information is found to be inaccurate or can no longer be
verified, the consumer reporting agency shall promptly delete such
information.
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MIS willfully refused to investigate plaintiff’s legitimate disputes as required by
15 U.S.C. §1681i(a) and it had no reasonable grounds to believe that plaintiff’s disputes
were frivolous or irrelevant.
3) MIS failed to correct the Fleet, Capital One and Providian discharged
accounts’ incorrect dates and balances. [Objection, p. 4,5,8,9,10,11,12,13]
Plaintiff submitted several disputes of the incorrect dates and balances for the
Fleet, Capital One and Providian discharged accounts. MIS claims that the status and
bankruptcy dates are irrelevant. If so, why are MIS and Experian collecting and
disseminating irrelevant data?
Fair Isaac’s Mr. Quinn wrote to plaintiff that all incorrect data should be disputed
and refused to provide more specific information. MIS continued to report inaccurate
data and often made the reporting worse in response to the disputes and it failed to
comply with 15 U.S.C. §1681i(a).
4) MIS failed to correct the Capital One and Target credit limits. [Objection, p.
11, Plaintiff’s Response to MIS’ Statement of Facts, p.18]
MIS failed to properly investigate plaintiff’s disputes and MIS continued to report
inaccurate and incomplete data in violation of 15 U.S.C. §1681i(a).
5) MIS failed to correct the Compass Bank judgment [Plaintiff’s response to MIS’
Statement of Facts, p.18]
MIS states that “under Experian’s reporting system” it was not possible to
accurately report this judgment. [MIS Exhibit 24, p. 2] MIS should have reported this
software defect to Experian and it should have deleted the judgment if it was unable to
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report it accurately. The false reporting of Compass Bank as plaintiff implies that
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Compass Bank sued plaintiff for a delinquent debt. MIS willfully continued to report
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incorrect data despite plaintiff’s factual dispute in violation of 15 U.S.C. §1681i(a).
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6) MIS refused plaintiff’s telephone disputes. [Plaintiff’s response to MIS’
Statement of Facts p.18]
On at least two occasions MIS refused plaintiff’s telephone disputes. On 8/27/03
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MIS refused plaintiff’s telephone dispute of the incorrect/missing credit limits. [Exhibit
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AQ-13] MIS responded that it could not have lodged an investigation because plaintiff
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never provided any identifying information. However, plaintiff specifically noted in her
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call summary that she did not provide any information because it is most perplexing that
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MIS never asked for it.
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The other CRAs’ employees ask for the consumer’s name and social security
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number and then request either a report or file ID number prior to discussing the credit
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file. The MIS employees failed to request any identifying information whatsoever and
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they even refused to look at the credit file despite plaintiff’s numerous requests. The MIS
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employees categorically demanded that plaintiff had to submit written disputes, set up an
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appointment and make the 500 mile roundtrip to their office or dispute with Capital One
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directly.
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MIS failed to investigate plaintiff’s disputes as required by 15 U.S.C. § 1681i(a)
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and apparently MIS refused all telephone consumer disputes as a matter of policy.
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7) MIS failed to provide the investigation procedures. [Objection, p. 13,14]
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With its Motion for Summary Judgment MIS submitted the printout from the
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Experian website to document its compliance. [MIS Exhibit 21] After plaintiff pointed
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out that MIS fabricated this exhibit, MIS submitted the 11/21/02 consumer disclosure
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with the investigation results of plaintiff’s Capital One credit limit disputes. [MIS Exhibit
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23] This disclosure does not provide the requested investigation procedures. However,
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on page 3 of the consumer disclosure MIS announces:
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The federal Fair Credit Reporting Act states that you may:
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-- request a description of how we verified the information, including the
business name and address contacted and the telephone number; if
reasonable available.
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MIS was obviously fully aware of this FCRA requirement and willfully failed to
comply with 15 U.S.C. § 1681i(a)(7).
8) MIS failed to provide complete consumer disclosures including the permissible
purpose for all inquiries. [Objection, p. 11,12]
MIS admits that it failed to provide complete consumer disclosures including the
permissible purpose for all inquiries and it willfully continued to refuse to provide
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complete disclosures even after plaintiff’s specific request. [MIS Exhibit 20] 15 U.S.C.
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§ 1681g(a)(1) mandates that “[a]ll information in the consumer's file at the time of the
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request” be disclosed to consumers.
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In 3/04 plaintiff became an identity theft victim and she is still unable to determine
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the permissible purpose for the inquiries on her MIS credit reports as MIS and Experian
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still maliciously refuse to disclose this extremely important data. Equifax and Trans
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Union clearly identify promotional inquiries. Obviously, plaintiff is concerned about
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inquiries by companies she does not know. The FCRA provides for $1,000 in statutory
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damages when a person accesses a consumer credit file without a permissible purpose
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because Congress is very concerned with the enormous potential damages due to
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unauthorized access of credit files. Consumers must be able to identify the permissible
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purpose of all credit inquiries.
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9) MIS failed to provide a toll-free telephone number as well as the required
disclosure. [Objection, p. 15,16]
It was not the intent of Congress to make it cost prohibitive for consumers in
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Arizona, New Mexico and Nevada to dispute inaccurate credit data on the telephone.
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MIS acted as a national credit reporting agency in the spirit of the law. MIS was by no
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means a regional CRA collecting data only for Phoenix area consumers from local
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merchants and providing credit data to local merchants. Obviously, it is not necessary for
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a regional CRA to provide a toll-free number when consumers have a local toll-free
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number for the CRA.
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MIS Vice President Steve Keim admits in his Declaration that MIS had a
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contractual relationship with Experian, that the MIS data was stored on Experian’s
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computer system and that plaintiff’s credit reports were prepared using Experian’s
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system. [MIS Exhibit 1, ¶ 12] He also states that sometimes Experian conducted the
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investigations. [MIS Exhibit 1, ¶ 12] The data furnishers reported plaintiff’s credit data
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directly to Experian, not to MIS. The adverse action letters identified “Experian”, not
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MIS as the CRA providing the credit reports. It is an undisputed fact that Experian is a
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national credit reporting agency.
While CRAs have a legal right to outsource certain tasks, they can not be allowed
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to circumvent the FCRA by doing so. Justice would not be served by dismissing this
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claim prior to reviewing the Experian/MIS contract and establishing who should have
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provided the toll-free number.
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10) MIS failed to conduct the appropriate investigations and MIS failed to
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implement reasonable procedures to assure maximum accuracy of consumer
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reports.
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MIS states that “MIS can, and does, only report data furnished to it by creditors.”
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This statement documents the MIS blatant disregard for the law. MIS quoted from the
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FTC Official Commentary to the FCRA which clearly does not apply because the
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information provided by the furnishers is not credible on its face. Trained personnel
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would have been able to determine that “N/A” for the credit limit of a revolving account
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cannot possibly be accurate and complete and would have noticed that the reporting of
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the discharged accounts made absolutely no sense.
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MIS failed to explain how the various data fields on the ACDVs correspond to the
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data on the consumer disclosures. It may well be that the software is defective or that
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incorrect instructions were provided to the data furnishers. In her credit reporting
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research plaintiff has seen literally hundreds of discharged accounts reported with
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incorrect dates by MIS/Experian.
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The many incorrect dates for the discharged accounts were obviously incorrect.
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Plaintiff’s bankruptcy with the correct dates was the very first item on the reports. A very
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brief review of plaintiff’s reports by trained MIS personnel would have resolved almost
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all of plaintiff’s disputes and at the very least would have resulted in the determination
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that the data reported by the furnishers was incorrect or incomplete.
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Discovery should reveal why the discharged accounts were reported incorrectly
despite numerous disputes and whether MIS complied with 15 U.S.C. §1681e(b).
Not only does the FCRA explicitly require CRAs to conduct investigations, but
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the courts consistently confirmed that CRAs have the legal obligation to do more than to
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rely on the furnishers’ data.
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Cushman v. Trans Union Corp., 115 F.3d 220 (3d Cir. 06/09/1997):
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We now turn to the questions of a consumer reporting agency's obligations
pursuant to Section(s) 1681i(a) and a plaintiff 's burden of proving a claim of
negligent noncompliance with that section. TUC contends that Section(s)
1681i(a) did not impose on it an obligation to do any more than perform the
reinvestigation it performed in this case. That is, TUC believes that when a
consumer informs a consumer reporting agency that information contained in
her consumer report is inaccurate, the consumer reporting agency is obliged
only to confirm the accuracy of the information with the original source of the
information. According to TUC, it is never required to go beyond the original
source in ascertaining whether the information is accurate.
[35] This position has been rejected by the United States Courts of Appeals for
the Fifth and Seventh Circuits. See Henson, 29 F.3d at 286-87; Stevenson v.
TRW Inc., 987 F.2d 288, 293 (5th Cir. 1993). In Henson, a state court
judgment docket erroneously stated that an outstanding judgment had been
entered against the plaintiff. Two credit reporting agencies included the
erroneous entry on their consumer reports regarding the plaintiff. See Henson,
29 F.3d at 282-83. The plaintiff sued those credit reporting agencies pursuant
to both Section(s) 1681e(b) and Section(s) 1681i. See id. at 284, 286. Section
1681e(b) requires consumer reporting agencies "to follow `reasonable
procedures to assure maximum possible accuracy' of the information"
contained in the credit report. Id. at 284 (quoting 15 U.S.C. Section(s)
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1681e(b)).
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Prior to discovery it is impossible to determine whether MIS complied with Section
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1681e(b), to date MIS has failed to disclose any procedure to assure maximum possible
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accuracy whatsoever. Id.:
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[38]
The Fifth Circuit came to a similar conclusion in Stevenson, 987 F.2d at
293. In that case, similar to the situation here, the consumer's son had
fraudulently obtained accounts in the consumer's name. See id. at 291. Other
inaccurate information appeared on the credit report as well. See id. The credit
reporting agency sent written forms to the credit granting agencies that had
originally supplied information concerning the consumer, and relied on those
credit grantors to make the conclusive determination of whether the
information was accurate. See id. at 293. Holding that this was insufficient, the
court wrote: "In a reinvestigation of the accuracy of credit reports [pursuant to
Section(s) 1681i(a)], a credit bureau must bear some responsibility for
evaluating the accuracy of information obtained from subscribers." Id. (citing
Swoager v. Credit Bureau of Greater St. Petersburg, 608 F. Supp. 972, 976
(M.D. Fla. 1985)).
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Apparently MIS never reviewed the information provided by the subscribers in
response to plaintiff’s disputes. Id.:
[39] The court reasoned that such a result was the only one consistent with the
language of Section(s) 1681i(a), which requires "that the `consumer reporting
agency shall within a reasonable period of time reinvestigate' and `promptly
delete' inaccurate or unverifiable information." Id. (quoting 15 U.S.C.
Section(s) 1681i(a)) (emphasis in Stevenson). The court expressly rejected the
same argument made here by TUC: "that where fraud has occurred, the
consumer must resolve the problem with the creditor." Id. Rather, "[t]he statute
places the burden of investigation squarely on" the consumer reporting agency.
Id.
MIS advised plaintiff that she had to contact Capital One during the 8/23/03 call
and refused her disputes. Id.:
[41]
We also agree with the cogent observation by the Fifth Circuit that the
plain language of the statute places the burden of reinvestigation on the
consumer reporting agency. See Stevenson, 987 F.2d at 293. The FCRA
evinces Congress's intent that consumer reporting agencies, having the
opportunity to reap profits through the collection and dissemination of credit
information, bear "grave responsibilities," 15 U.S.C. Section(s) 1681(a)(4), to
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ensure the accuracy of that information. The "grave responsibilit[y]" imposed
by Section(s) 1681i(a) must consist of something more than merely parroting
information received from other sources. Therefore, a "reinvestigation" that
merely shifts the burden back to the consumer and the credit grantor cannot
fulfill the obligations contemplated by the statute.
[42] In addition to these observations, we note that TUC's reading of
Section(s) 1681i(a) would require it only to replicate the efforts it must
undertake in order to comply with Section(s) 1681e(b). Such a reading would
render the two sections largely duplicative of each other. We strive to avoid a
result that would render statutory language superfluous, meaningless, or
irrelevant. See Sekula v. F.D.I.C., 39 F.3d 448, 454 n.14 (3d Cir. 1994);
Pennsylvania Dept. of Public Welfare v. United States Dept. of Health and
Human Servs., 928 F.2d 1378, 1385 (3d Cir. 1991).
The undisputed facts and MIS’ own exhibits document that MIS failed to comply
with 15 U.S.C. 1681i(a) on numerous occasions.
11) Defamation
The FCRA expressly provides for defamation claims when CRAs furnish false
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information with malice or willful intent.
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15 U.S.C. § 1681h: § 610. Conditions and form of disclosure to consumers
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(e) Limitation of liability. Except as provided in sections 616 and 617
[§§ 1681n and 1681o] of this title, no consumer may bring any action or
proceeding in the nature of defamation, invasion of privacy, or negligence
with respect to the reporting of information against any consumer reporting
agency, any user of information, or any person who furnishes information
to a consumer reporting agency, based on information disclosed pursuant to
section 609, 610, or 615 [§§ 1681g, 1681h, or 1681m] of this title or based
on information disclosed by a user of a consumer report to or for a
consumer against whom the user has taken adverse action, based in whole
or in part on the report, except as to false information furnished with
malice or willful intent to injure such consumer. [Emphasis added.]
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MIS admits that it willfully refused to investigate and/or correct false information
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after receiving plaintiff’s disputes. Even after MIS was served with plaintiff’s complaint
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and it accessed plaintiff’s credit file 11 times on 5/1/03 [Exhibit I-1, p. 13] it continued to
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report the incorrect Capital One and Target credit limits and MIS incorrectly reported the
judgment with Compass Bank as plaintiff.
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B. Conclusion
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The MIS Motion for Summary Judgment must be denied.
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1) MIS fabricated and withheld documentation.
MIS was fully aware that it had not previously provided plaintiff with MIS
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Exhibit 21, the printout from the Experian web site, and it intentionally included this
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fabricated document to deceive plaintiff and the Court.
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MIS omitted disputes and investigation results despite the fact that it had received
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the 2nd American Agencies dispute [Exhibits AQ-1,2], the Compass Bank judgment
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dispute and the Capital One limit disputes. [MIS Exhibits 23 and 26]
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2) MIS falsely stated that plaintiff “admitted virtually all of MIS’ material
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statements of facts.” [MIS Reply in Support of its Motion for Summary Judgment,
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p. 2, lines 2-3]
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Plaintiff stated that discovery was necessary 11 times.
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Plaintiff denied 3 MIS so-called factual statements.
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Plaintiff denied in part 11 MIS so-called factual statements.
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MIS omitted several disputes.
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3) Plaintiff has numerous documented claims.
As described in this filing and in her 4/14/04 Objection and documented by MIS’
own as well as plaintiff’s exhibits, plaintiff has numerous claims and she is entitled to
discovery.
For these reasons, plaintiff respectfully requests that the Court deny the MIS
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Motion for Summary Judgment.
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Respectfully submitted this 19th day of April, 2004.
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Christine Baker
Plaintiff Pro Per
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