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Fair Credit Reporting: 4.4.6.5.1 Background

The gathering and maintenance of public records pose unique accuracy problems for CRAs. Special problems exist where CRAs review, interpret, and then manually record judgments, tax liens, or bankruptcies.

Fair Credit Reporting: 4.5.6.1 The e-OSCAR and ACDV Systems

The three major nationwide CRAs handle a large volume of consumer disputes. In order to handle those disputes, their trade association, the Consumer Data Industry Association (CDIA), has developed an electronic dispute processing system known as e-OSCAR (Online Solution for Complete and Accurate Reporting). Understanding this system is critical to understanding the CRAs dispute handling procedures.

Fair Credit Reporting: 4.4.6.7 Identity Theft

The FACTA amendments to the FCRA mandated a number of procedures regarding identity theft. In addition, states have enacted protections that consumers can use to prevent identity theft. Most of these procedures must be invoked by notice from the consumer or identity theft victims. These procedures are discussed at length in Chapter 9, infra.

Fair Credit Reporting: 4.4.6.9.1 Introduction

A consumer’s file at a CRA may be incomplete for several reasons: a creditor’s failure to provide any information about the consumer’s account, a furnisher’s failure to include complete information about existing items in a file, or the failure to update existing items in a file.912 The consumer might lack any file at a CRA.913 A CRA might also fail to include certain information even though it has been furnished to the CRA.

Fair Credit Reporting: 4.4.6.9.4 Reasonable methods to acquire updated information

CRAs must establish reasonable procedures to ensure that information is not outdated, even if the information is accurately reported as being current only as of a certain date, because the report produces a misleading picture of the consumer.964 The user of a consumer report cannot be ensured of receiving the most accurate information reasonable under the circumstances if information is permitted to become misleading with the passage of time.

Fair Credit Reporting: 4.5.6.4 The Processing of Consumer Disputes

Processing of consumer disputes is a fairly mechanical procedure. Until 2013, the nationwide CRAs did not forward the actual dispute letters or any accompanying documents to the furnisher.1660 The only contact between the CRA and furnisher was the one-page electronic ACDV. Nor did CRA employees contact a live person as part of the dispute process and reinvestigation or exercise any personal discretion. The CRA dispute employee solely coded the dispute category and then forwarded the ACDV to the furnisher.

Fair Credit Reporting: 4.5.6.5 Deposing the “Big Three” As to Reinvestigation Procedures

In litigation, the “Big Three” each tend to produce the same corporate witnesses from one case to another concerning that CRA’s dispute and reinvestigation procedures. No matter the geographic location or issue involved in a case, the CRA will tend to utilize only one or two of a small number of individual employees, who specialize in being professional witnesses in these cases. It can be expected that these employee witnesses will be able to generally describe the CRA’s procedures and will develop the CRA’s position in the best possible light.

Fair Credit Reporting: 4.5.7 Statute of Limitations for Consumer Disputes

FCRA claims must be brought within two years of the plaintiff’s discovery of the “violation that is the basis for . . . liability,” but in no event more than five years after the date of such violation.1675 In the context of a consumer’s dispute triggering a CRA’s reinvestigation duties, the date of the violation that begins the limitations period is thirty days after communication of the dispute to the CRA, which is when the CRA’s reinvestigation must be completed.1676

Fair Credit Reporting: 4.6.1.2 Copy of the Corrected Report

The FCRA specifically requires after a reinvestigation that the CRA provide in writing “a consumer report that is based upon the consumer’s file as that file is revised as a result of the reinvestigation.”1709 However, Equifax and Experian often provide only the portion of the consumer’s credit file which was investigated and do not provide a full version of the consumer report. For example, if a consumer disputes a single tradeline, the CRA may provide only a single page showing that individual trade line.

Fair Credit Reporting: 4.6.1.3 Description of Procedure Used

The FCRA provides the consumer a right to request a description of the procedure used to determine the accuracy and completeness of the disputed information.1716 This information must include the business name and address, and if reasonably available, the telephone number of any furnisher contacted during the reinvestigation.1717 This information may be particularly useful if a dispute remains, and if the consumer has had difficulty locating this creditor.

Fair Credit Reporting: 4.6.3 CRAs Must Notify Furnishers of Reinvestigation Results

A consumer reporting agency is required to notify the furnisher when the CRA corrects or deletes information as a result of the reinvestigation.1737 Such a notice should trigger a separate responsibility for the furnisher—to cease furnishing any information that the furnisher “knows or has reason to believe” is inaccurate1738—since the correction/deletion notice from the CRA should serve as reason to believe that the information was inaccurate.

Fair Credit Reporting: 4.6.4 Consumer Follow-Up Steps Where Corrections Made

Where the CRA corrects or deletes the disputed items, there are steps the consumer should take to follow up. First, obtain another copy of the information in the consumer’s file to confirm that the corrections and deletions were made.1742 This is especially important if the CRA has provided only a partial file at the conclusion of the reinvestigation.1743

Fair Credit Reporting: 4.7.1.1 Generally

One of the most pernicious reporting abuses suffered by consumers has been the repeated reintroduction of inaccurate information into one’s consumer report after it has already been deleted once, twice, or even more times before. Consumer reporting agencies routinely recapture uncorrected information from monthly or periodic electronic transmissions from creditors who have never corrected their own files.

Fair Credit Reporting: 4.7.1.2 Soft-Deletion

Sometimes the problem arises at the CRA—not the creditor—level, where the a CRA has only suppressed or cloaked the information, called a “soft-delete,” instead of performing a “hard-delete” that erases the information from the CRA’s database.1757 The purpose for this function is to prevent a later re-reporting of the same account by the same furnisher.

Fair Credit Reporting: 4.7.2.1 Generally

The FCRA’s provision governing the reinsertion of previously deleted information has three parts: (1) CRAs must adopt procedures to prevent the reappearance of material, except as specifically allowed;1762 (2) for previously deleted material to be reinserted, the material must be certified by the furnisher;1763 and (3) if material is reinserted, the consumer must be promptly notified.1764 What constitutes a “reinsertion” for purposes of these

Fair Credit Reporting: 4.7.2.3 Furnisher Certification of Reinserted Information

Before information is reinserted into a consumer’s file, the furnisher of the information must certify that the information is accurate and complete.1777 The form of certification is not specified and has not been considered by the courts.1778 To be meaningful, the certification must reflect an individualized, separate determination by the furnisher that the particular information is both accurate and complete.