Mixed Files:Trans Union: O'Connor v. TU

Father-Son, Mother-Daughter, Junior-Senior-Trey [Generational Designators], Common Names, Variations on Social Security Numbers and Other Mixed File Issues
David A. Szwak

Mixed Files:Trans Union: O'Connor v. TU

Postby David A. Szwak » Tue Oct 18, 2005 10:37 pm

James J. O'Connor v. Trans Union Corp., Civil Action No. 97-4633 [U.S.D.C. E.D. Pa. 9/28/99]
Court denied TU’s Motion for Summary Judgment, in part, and granted it in part, finding plaintiff proved violations of 1681e[b] and 1681i, but failed to prove willfulness. Plaintiff claimed that TU mixed his credit files with another consumer, James J. O’Connor, Jr., plaintiff’s son, then, after disputes, continued to mix the credit data and prepare and issue false credit reports. TU refused to delete and cure the errors. The information retrieved by Trans Union concerning Plaintiff's son neither contained a social security number, address, nor a date of birth that matched those of Plaintiff. The report also identified two former addresses of Plaintiff, neither of which were Plaintiff's former addresses, but were instead those of his son. The fifth item of adverse information negligently reported that Plaintiff's Macy's card had been "cancelled [sic] by credit grantor" [an adverse coding] when Macy's had simply reported it as closed. Plaintiff sustained credit denials. The court found plaintiff’s burden under 1681e[b]: (1) the consumer reporting agency was negligent in that it failed to follow reasonable procedures to assure the accuracy of its credit report; (2) the consumer reporting agency reported inaccurate information about the plaintiff; (3) the plaintiff was injured; and (4) the consumer reporting agency's negligence proximately caused the plaintiff's injury. [citations omitted]. The first question is whether the data is accurate, if so, then no further inquiry into the CRA’s procedures is required. Even where it is inaccurate, a credit reporting agency is not held strictly liable merely for reporting it, rather, the consumer must show that the agency failed to follow reasonable procedures in generating the inaccurate report. Thus, to defeat a motion for summary judgment on a 1681e(b) claim, a plaintiff "must minimally present some evidence from which a trier of fact can infer that the consumer reporting agency failed to follow reasonable procedures in preparing a credit report.” Stewart, 734 F.2d at 51. TU did not dispute that it produced at least one report that contained inaccurate information about O'Connor and that the inaccuracy was due to its failure to follow reasonable procedures. TU alleged that because Plaintiff never notified them of an error in its credit report regarding Plaintiff until after the credit denial by First Union, Defendant is entitled to summary judgment as a matter of law with respect to Plaintiff's 1681e(b) claim. Defendant cites a number of cases for the proposition that "[p]rior to being notified by a consumer, a credit reporting agency generally has no duty to reinvestigate credit information" under 1681e(b) of the FCRA. [citations omitted]. The Court disagreed with Defendant's analysis and argument. Despite Defendant's contention, the Third Circuit never held that in order to satisfy a prima facie case under 1681e(b) of the FCRA for reporting inaccurate information, a plaintiff must show that the defendant had prior notice of the inaccuracies from the consumer. In support of its position, Defendant relies on Philbin. The Philbin court, however, never made such a finding. See Philbin, 101 F.3d at 963.

David A. Szwak

Postby David A. Szwak » Mon Oct 24, 2005 8:57 am

Rule 56[f] affidavits receive liberal construction so as to permit additional discovery where it appears necessary. James J. O'Connor v. Trans Union Corp., No. 97-4633 [U.S.D.C. E.D. Pa. 5/11/98], [unpublished, but available on the internet], citing International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1267 [5th Cir. 1991] [requiring only statement of party's need for additional discovery], cert. denied, 502 U.S. 1059 [1992].

David A. Szwak

Postby David A. Szwak » Mon Oct 24, 2005 8:59 am

"To show willful noncompliance with the FCRA, [the consumer] must show that [the credit agency] 'knowingly and intentionally committed an act in conscious disregard for the rights of others,' but need not show 'malice or evil motive.'" Cushman, 115 F.3d 220, 226 (3d Cir. 1997) (citing Philbin, 101 F.3d at 970. In Cushman, the Third Circuit held that only defendants who have engaged in actions "on the same order as willful concealment or misrepresentations" have committed a willful violation for FCRA purposes, and are subject to punitive damages under 1681n. Cushman, 115 F.3d at 227. To justify an award of punitive damages, O'Connor must prove that Trans Union adopted its reinvestigation policy either knowing that policy to be in contravention of the rights possessed by consumers pursuant to the FCRA or in reckless disregard of whether the policy contravened those rights. See id.” James J. O'Connor v. Trans Union Corp., Civil Action No. 97-4633 [U.S.D.C. E.D. Pa. 9/28/99].


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