There are a group of federal statutes that provide a broad range of important protections for consumers against harmful lending practices. These statutes include the Fair Credit Reporting Act (15 USC 1681), the Consumer Credit Protection Act (15 USC 1671), the Fair Debt Collection Practices Act (15 USC 1692), the Truth in Lending Act (15 USC 1601), and the Fair Credit Billing Act (15 USC 1666). These laws are designed to protect consumers against abuses by creditors and credit agencies that can have a devastating effect upon people’s credit scores, can impede their ability to pursue employment, and can keep them in debt.
The educated consumer should know how to take advantage of federal laws designed to protect against abuses by creditors and credit agencies. With proper documentation that is easy to prepare, the consumer can often force creditors and credit agencies to correct errors or to pay significant damages through a lawsuit
To benefit from this protection the consumer needs to understand the basic rights granted by each statute and to know how to use them to advantage. If the reader is concerned with the specific application of a statute to the particular facts of his case, he should seek legal advice from a lawyer in his state. This article focuses on the rights established under the Fair Credit Reporting Act.
In 1968 Congress passed the Fair Credit Reporting Act (the FCRA) to protect consumers against unfair credit reporting. Congress said:
“Consumer reporting agencies have assumed a vital role in assembling and evaluating consumer credit and other information on consumers…There is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer’s right to privacy.”
People are frustrated as well as financially damaged when they try to correct errors in their credit reports and the credit agencies ignore them. You can minimize these frustrations by taking common sense steps that will convince or, if necessary, force the credit agency to act. The threat, or even hint, of a properly documented legal action will often break the logjam. The threat becomes even more effective if an attorney becomes involved, and the statute provides ways you can obtain the services of an attorney at little or no cost to the consumer.
Lawsuits Under The FCRA
To win a civil case, a plaintiff must establish both liability and damages. If a plaintiff proves that the defendant has violated a legal duty (liability), he is then entitled to the damages allowed under law that he can prove. Consumers can sue for violations of the FCRA in either federal or state court, and the FCRA gives the consumer powerful legal tools to pursue his case. These tools give the educated consumer powerful leverage to convince or compel credit agencies to correct errors in their reports.
Summary Of The Fair Credit Reporting Act
The FCRA consists of numerous lengthy sections that are written in technical and often confusing language. Some provisions apply to limited circumstances while others have a broad application. We will discuss the most important provisions including compliance procedures and civil penalties.
The statute defines “consumer” as an individual, which means that FCRA does not protect corporations, partnerships or other business organization. It applies only when a “consumer report” is involved. A “consumer report” is any communication of information that can be used to evaluate credit or to determine qualifications for employment, insurance underwriting, governmental license, legitimate business transactions that are initiated by the consumer, and other specific uses such as concerning national security investigations. There are specific restrictions on the use of medical information and limited disclosure of information permitted to governmental agencies. The consumer must consent before a prospective employer can review his report.
Only certain information can appear in a consumer report. Bankruptcies more than 10 years old and other adverse information except for records of convictions of crimes more than 7 years old must be removed. The counting period starts 6 months after an action has been taken on a delinquent account.
There are provisions against identity theft and a notice provision if an investigative consumer report is being prepared about the consumer. The consumer is entitled to certain information appearing in his report.
If the user of a credit report takes adverse action based on the report, he is obligated to provide the consumer with the name of the credit agency furnishing the report and other information. It is also a violation to obtain a consumer credit report under false pretenses.
The key provision of the FCRA is section 1681e. entitled “Compliance procedures.” This section establishes the principal obligations of consumer reporting agencies. Each agency “shall maintain reasonable procedures designed to avoid violations” regarding the inclusion of forbidden information and “to limit the furnishing of consumer reports” to permitted purposes. Paragraph (b) is probably the most significant provision in the entire FCRA:
“Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” (Emphasis added).
Section 1681i. extends the compliance provision by obligating the credit agency to conduct a reinvestigation of disputed information when a consumer notifies the credit agency of a dispute. The agency must also inform the consumer of the result of its investigation. The compliance requirement has important practical applications which are discussed below.
Courts have held that “reasonable procedures” are procedures that a prudent person acting as a credit reporting agency would follow under the circumstances.. Agencies have been held liable where the consumer complained about inaccurate reports and the agency failed to investigate. (Remember this point – it is important.) Agencies have also been found liable where they failed to report that an item was disputed. If there is an inaccuracy that is not brought to the agency’s attention, the question is whether the danger of harm to the consumer warrants the effort needed to detect and avoid the inaccuracy. The consumer can also establish lack of reasonable procedures by demonstrating reasonable alternative procedures that would have prevented the inaccuracy. The consumer can prove his case without discussing the specific procedures employed by a credit agency. These are all questions of fact, and the educated consumer can do a great deal to establish the facts that he needs to win.
Damages for Willful and Negligent Noncompliance
This section imposes liability on any “person” violating the FCRA. This includes both credit agencies and users of credit reports. Once the consumer has established a violation of the FCRA, he is entitled to damages. Section 1681n and 1681o make the FCRA a powerful enforcement tool for the consumer. Section 1681n describes the civil liability of credit agencies for “willful noncompliance.” The consumer in that case is entitled to actual damages, damages specifically allowed by statute which range from $100 to $1000, punitive damages, costs, and reasonable attorney’s fees. Section 1681o addresses civil liability for “negligent noncompliance” which entitles the consumer to actual damages, costs, and reasonable attorney’s fees.
The consumer is entitled to actual damages, costs and attorney’s fees for both willful and negligent noncompliance. Actual damages have been interpreted to be inclusive of almost any negative consequence. They include out of pocket expenses, injury to creditworthiness, loss of reputation, embarrassment and humiliation, and mental and emotional distress. In one case a plaintiff was awarded $50,000 for worry, stress, anxiety, loss of sleep and expenses of litigation. Costs are actual out of pocket expenditures for the litigation as well as statutory costs. Attorney’s fees are calculated on the basis of the attorney’s hourly rate and may be awarded where there is a successful outcome.
If the plaintiff proves that the noncompliance was willful, he or she is also entitled to statutory damages of $100 to $1,000 and punitive damages. To show willful noncompliance, which imposes a higher legal burden, the plaintiff must show that the defendant knowingly and intentionally committed the act in conscious disregard of the rights of others. Some decisions have also included “reckless disregard” of the rights of the consumer. The plaintiff does not have to show malice or evil motive. Courts have held that there was a sufficient showing of willfulness where a company knowingly included false information in a credit report; where a user of a credit report failed to properly identify a consumer reporting agency in a letter denying credit; and where a credit agency repeatedly sent meaningless form letters in order to wear out the consumer. Someone was held to have acted recklessly where he did not independently analyze a dispute. There are many cases where the claim of willfulness was rejected.
Factors in determining the amount of punitive damages to be awarded include the purpose of the FCRA, the harm to the consumer, the manner in which defendant conducted its business, and defendant’s income and net worth. The plaintiff does not have to prove actual damages in order to get punitive damages.
There are also criminal penalties for obtaining information under false pretenses or knowingly giving information to an unauthorized individual. In such cases the violator can be fined or imprisoned for not more than 2 years. Additionally, the FCRA can be enforced by the Federal Trade Commission and other federal and state agencies with a civil penalty not more than $2,500.
The FCRA applies when the consumer discovers an error in his or her credit report, which unfortunately happens more frequently than expected. The consumer can greatly increase his chances of obtaining a quick and favorable response from the credit agency by following certain common sense procedures. In the event that the agency still does not correct the problem, the work done by the consumer will be useful if a lawsuit becomes necessary.
As we have noted, cases have found a credit agency in violation of the FCRA when the consumer notifies the credit agency of the error and the credit agency does nothing. As common sense suggests, the stronger the documentation establishing these facts, the harder it will be for the credit agency to avoid liability. This translates into a practical course of action. The consumer must give adequate notice of his claim to the credit agency.
A critical point to understand is that it is not enough to give the credit agency notice of a complaint; the consumer must be able to prove that the credit agency actually received the notice. To do this the consumer should send the notice by Federal Express, UPS or similar carrier that records delivery. In some instances an email with an acknowledgment of receipt will be sufficient. Not only will the consumer then have proof of delivery, but the credit agency will know that the consumer has that proof and may be more likely to respond.
The next question is what information should the consumer send to the credit agency? The answer is documentation that will most strongly establish the validity of the consumer’s claim.
Example 1. Say, for example, that the credit agency has failed to note that an obligation has been fully paid. Often the consumer will call the creditor, ask him to send a letter to the credit agency, and wait. If nothing happens, it may because the creditor failed to send the letter, because the letter did not reach the credit agency, because the letter gave incomplete information, or because the credit agency failed to act. There is no way to determine what happened, so the consumer has no basis for a claim against the credit company.
Compare this with a more effective proactive approach. Assume the consumer himself obtains a written letter by the creditor that full payment was made on a stated date and the consumer sends that letter with his own written request that his account be corrected . This letter is delivered to the credit agency by Federal Express or UPS. If the credit agency ignores this information, how can it then claim that it is following reasonable procedures? And if a credit agency cannot show it followed reasonable procedures, then it has violated the FCRA.
Example 2. Let’s take a more complex case. Suppose that the consumer validly cancels a purchase order but the creditor erroneously reports it as unpaid. If the creditor issues a letter admitting its error, that should be sufficient. But what happens if the creditor simply doesn’t cooperate? What documentation would convince an objective person knowing nothing about the case that the consumer did in fact cancel the transaction and that the debt was erroneously reported?
The first thing needed is proof of the cancellation. The best proof would be documentation from the consumer to the creditor expressly stating that he was cancelling the order and saying why he was entitled to cancel the order. The letters, which must always be dated, should be written to fit the particular facts of the situation. Most important, the letters should be short, direct, and blunt. They must specifically say what has happened and never consist of vague hints or suggestions. Depending on the facts, the letters could read as follows.
Dear Mr. Creditor:
Please be advised that I am cancelling order no. xxxx as is authorized by paragraph 7 of your purchase order. Please mark your records that the order has been cancelled.
Very truly yours,
Another scenario might be:
Dear Mr. Creditor:
I am confirming my conversation with Joe Smith of your office that I have cancelled purchase order no. xxx. Please mark your records that the order has been cancelled.
Very truly yours,
This means that the educated consumer should know that when he cancels or makes an important change to an order, he must immediately document the cancellation or change in writing with date included and deliver that writing to the creditor by Federal Express, UPS or email with receipt requested.
The next thing needed is documentation showing that the creditor acknowledged the cancellation, either expressly or by the fact that he did not deliver the product. Again, written acknowledgment of the cancellation would suffice. If the creditor does not cooperate, the consumer can submit an affidavit (a written statement that is sworn to be true and signed and stamped by a notary public) stating that the creditor accepted the cancellation and did not deliver the goods. Since the product was never delivered, the creditor has no way to rebut this documentation.
The consumer should then write a letter to the credit agency expressly setting forth the facts.
Dear Credit Agency
I am writing to notify you that charge no. 1234 on my credit report is in error. On [date] I cancelled the order, and the creditor accepted the cancellation and never delivered the products. The cancellation is established by my letter to creditor dated [date] which is annexed and the acceptance and non-delivery of goods is established by my annexed affidavit.
Please either correct my credit report immediately to reflect this information or investigate this request immediately and advise me within 30 days of your findings.
Very truly yours,
Let’s say that the after receiving the cancellation letter and the affidavit from the consumer, the credit agency does nothing. The agency would be in violation of the FCRA. The practical effect of this documentation is that the credit agency probably would follow the path of least resistance and either correct the report immediately or investigate and then correct the report. The consumer gets the results he wants, first because he took the initiative and got the necessary documentation, and second because he sent the documentation to the credit company in a way that lets him prove receipt.
Getting An Attorney The FCRA allows a consumer to be reimbursed for his or her attorney’s fees when the consumer prevails in a lawsuit. By having relevant, concrete documentation as we discussed above, the consumer himself establishes what is probably a winning case. (As any honest attorney will agree, there are never any guarantees.) The consumer should be able to find an attorney to represent him if a litigation against a credit agency becomes necessary and he has already established a strong case. As part of the representation, the attorney probably will first write a demand letter to the credit agency, and that letter in and of itself may be sufficient to get the desired result.
The FCRA empowers the educated consumer to protect his rights with credit reporting agencies. Effective use of these rights can be of substantial benefit to the financial health and welfare of the consumer.