Credit reports Hearsay and the FCRA

[rambler]

I have seen many time where people say that credit reports are hearsay. If this is the case, then how can anyone hope to ever win a FCRA case? I mean, if a CR is hearsay, then wouldn't any correspondance between the CBs and the consumer be as well? How else does one know of a violation other than reviewing the CR?

Do the CBs keep a good record of everything that is reported to them by a furnisher? (they told me time and time again they have no access to last months information when I brought up it was being changed monthly).

If I file suit against the CBs and the OC will the CBs do me a favor and hand over all the crap the OCs reported in hopes of removing liability? Is this my only hope for those documents that will actually stand up in court?

[NeverServed]

I am dumfounded how cr are heresay. I really am. Because it would be like the credit agreement is heresay. How do they know they even told you the terms etc? CR imho shouldnt be heresay because for them to report that it has to be right. Most of us cant get copies of bank records. the debts are so old that these JDB's are trying to win a small fortune on. It just goes on and on. I think that with the current economic crisis the govt should be helping protect us from JDB's. Our tax dollars helped bail these banks out. We will be paying for years to come.

[legaleagle]

Did they say why it would be hearsay and under what conditions? It is what it is, it's a report generated by the crdit bureau. You aren't asking it to testify in court.

[rambler]

No, it was not stated why. This was just mentioned in one or of my threads in the past day or two and I also so this in several other threads I was reading while trying to determine the best path for me to pursue.

I know they broke the law. They know they broke the law. One even went so far as to delete the accounts and the default judgment against me from the CRs in hopes I wouldn't file suit. The have not vacated it, and they still commited the violations. I feel it is a STRONG case for willful sense it was done inresponse to a dispute (and the correspondance from the company). As soon as I dispute, a 3+ year old debt becomes 2 months old. And changes monthly.

Besides FCRA violations, it's coercion (by inflicting the most possible damage as a means to force payment) and unfair or unconscionable means of debt collection. Not to mention fraudulent, deceptive, or misleading representation of the debt.

BUT all I have to show this is 7+ months of various CRs with ever changing false information (and one great big case of defamation when they claimed I petitioned for BK...in the status of my TL).

So IF this is hearsay I have little to no ground to stand on. My only hopes then would be if the CBs turn on the OCs and turn over the information they reported each month and you can see month by month what they did and when I disputed and their responses.

[KentWA]

legaleagle is right in pointing out that it is a report generated by someone else, therefore it is hearsay unless you can get them to testify. However it can be the basis of your information and belief to take action in court, so it is not useless.

There are generally two ways to get the admissible information you want, if you even need it since most companies will just try to settle out as fast as possible. The CRAs often ignore a subpoena that is not signed by a judge. 1) You can sue the CRA along with the provider of the information, how do you know which company screwed up the information or if they both did to some extent. 2) You can use discovery to force the provider to cough up every item of information they sent to the CRAs.

[rambler]

2) You can use discovery to force the provider to cough up every item of information they sent to the CRAs.

Somehow knowing how these folks operate I doubt it would be the correct information. I bet either it would show something completely different, or they no longer have it. We are dealing with some true pond scum here, I cannot see them incriminating themsleves with the documents I will ask for.

If the CRAs can furnish this upon request, they might to escape liability but as I stated they at least claim to me they do not have that information. I seriously doubt this as well, but it may be hard to get what I want from them.

Seems like a multi-headed lawsuit with lot's of discovery may be my only option here. Woot, this will be a doosy for a first timer.

[BV80]

I think the problem is that it's a matter of authentication. You have to show that the credit report is authentic. The best authentication would be an affidavit from the CRAs that authenticates that particular report. The JDB would have a hard time trying to refute the CRAs affidavit.

Whether or not the CRAs would agree to provide an affidavit is another story.

It could also be that the JDB wouldn't fight your own affidavit stating that the copy is true, correct, and directly from the CRAs.

Edited March 15, 2012 by BV80

[rambler]

Not that it matters much as far a the suit would go, but these are not JDB. These are OCs I am dealing with.

Also, if the CR is hearsay and the CRAs don't want to play ball (even though that would remove liability) could I subpeona them to either provide all requested information or an agent to testify what was furnished to them?

If I am filing the suit, and file an affidavit that all the reports I enter as evidence are true and correct copies straight from the CRAs...then I could force the CRAs to provide at least an affidavit that they reported the information as furnished correct?

To me, I would think the CRAs would want to play ball to remove the liability since I will be going for willful negligence.

[BV80]

Not that it matters much as far a the suit would go, but these are not JDB. These are OCs I am dealing with.

Also, if the CR is hearsay and the CRAs don't want to play ball (even though that would remove liability) could I subpeona them to either provide all requested information or an agent to testify what was furnished to them?

If I am filing the suit, and file an affidavit that all the reports I enter as evidence are true and correct copies straight from the CRAs...then I could force the CRAs to provide at least an affidavit that they reported the information as furnished correct?

To me, I would think the CRAs would want to play ball to remove the liability since I will be going for willful negligence.

You'd have to ask an attorney if you could subpoena the information. I suppose you could, but I don't know for sure.

Also, you have to make sure that you have the right to sue. The FCRA does not provide a private right of action for everything. Only certain violations allow us to sue.

[KentWA]

Actually you do not give pond scum enough credit. You are really talking about a couple thousand dollars in violations and they are going to want to settle it out real fast. The only time a case like this is going to be fought all the way is some sense of honor that they really did nothing wrong. Those are the kinds of people that would never try to fiddle with evidence.

So what happens if they say "We do not have that data any longer"? You file a motion for spoliation of evidence and summary judgement on all counts as the sanction.

[rambler]

Also, you have to make sure that you have the right to sue. The FCRA does not provide a private right of action for everything. Only certain violations allow us to sue.

I know there are cetion subsection which are exempted from civil liability (609 being one..other similiar subsections) but

"

[QU(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."

Actually you do not give pond scum enough credit. You are really talking about a couple thousand dollars in violations and they are going to want to settle it out real fast. The only time a case like this is going to be fought all the way is some sense of honor that they really did nothing wrong. Those are the kinds of people that would never try to fiddle with evidence.

So what happens if they say "We do not have that data any longer"? You file a motion for spoliation of evidence and summary judgement on all counts as the sanction.

It might be nice, but so far everything they have done has led me to believe otherwise. And if I file this, according to advice given to me in another thread here I will actually be filing on Experian and TU as well as four seperate companies. Now at least one of these is normally a reputable company, but for whatever reason has decided to try and work me over.

[rambler]

Actually you do not give pond scum enough credit. You are really talking about a couple thousand dollars in violations and they are going to want to settle it out real fast.

At least with 3 of these, I would settle for Paid in Full/release of all liability statements. Well, one of them would require that and them filing a motion to vacate a default judgment for me to settle. Any $ would be nice, but more than anything I want these crooks off my CR so I can buy a house.

[BTO429]

court may consider an extrinsic document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.

[Coltfan1972]

I am dumfounded how cr are heresay. I really am.

Look at it this way.

You introduce the credit report into evidence and highlight some error on your report. You ask the person you're suing to read the highlighted section. They read it and it's a violation of the FCRA, what they read.

Then they say, it's what this credit report says, but that is not what we reported and told the CRA to put on the credit report. The CRA must have made a mistake, we never authorized what you just had me read to be put on the credit report.

What's your comeback?

Remember, the person on the witness stand did not have anything to do with actually putting the information on the credit report. They simply reported information to the CRA.

You have no first hand knowledge about the report. You're just holding a credit report. You have no way to explain the credit report is accurate. It's just something you printed off the internet or received in the mail.

That's why it's hearsay. In this example, not a single person in the court room can authenticate the credit report or explain what was and was not report to the CRA and what was and was not supposed to be put on the report.

You would have to subpoena somebody from the CRA to come testify and authenticate the credit report. Of course the costs of that would be a small fortune.

It's really what we do and advocate doing to JDB'S all the time, when we are sued by them. That is challenge all the records they bring to court from the original creditor because the JDB can't authenticate somebody else documents.

On a side note, in a situation like this, you use discovery and request for admissions to try and win your case. Those are answered under oath and are admissible to use at the trial. Of course, obviously, the other side is going to fight that all the way.

[BTO429]

GORMAN v. WOLPOFF ABRAMSON LLP MBNA

“If the significance of an offered statement lies solely in the fact that it was made ․ the statement is not hearsay.”

If the accurateness of a statement on a credit report is the sole issue of the complaint, then that issue has to be examined. As long as the report does not come from a third party issuer of the information, Then that information can not be deemed inadmissible.

[jq26]

GORMAN v. WOLPOFF ABRAMSON LLP MBNA

“If the significance of an offered statement lies solely in the fact that it was made ․ the statement is not hearsay.”

If the accurateness of a statement on a credit report is the sole issue of the complaint, then that issue has to be examined. As long as the report does not come from a third party issuer of the information, Then that information can not be deemed inadmissible.

Nice post BTO. I agree 100%. You are not introducing the credit report for the purposes of proving the truthfulness of the statements within it. You are introducing it to show simply WHAT WAS REPORTED (a required element of your claim). Whether what was reported in the report or not is accurate is not supported by the document itself and isn't being introduced for this purpose- therefore not hearsay.

[usagi555]

If I were going to file an FCRA suit, there would lots of written disputing before so that I could get written responses back from everybody who was going to be a defendant. That way, I could use the written statements as admissions by a party opponent. That'd go a long way towards helping clear up the hearsay issues. When you dispute with a CRA and they send back a written statement telling you that the TL came back as verified, then you dispute with the OC and they send you a written communication telling you that the TL is accurate, it makes it very difficult for them to claim that the CRA screwed it up.

[rambler]

Sounds good. So back to attempting to write all this up.

I am confused though on the matter that one person advised me on of naming the CRAs as well as all four of the companies reporting false information.

Experian I am assuming will be named just for the fact they reported the false information furnished to them after multiple disputes.

TU for the same and reinserting tradelines without following the requirements spelled out in the FCRA.

Four companies for numerous and repeated willful furnishing of false information and changing the running of reporting period.

Since TFC 392 applies to OCs as well as CA's I can toss in some violations from there. and tie it in to the TDTPA for treble damages as well (FCRA also allows for punitive damages for willful).

[rambler]

If I were going to file an FCRA suit, there would lots of written disputing before so that I could get written responses back from everybody who was going to be a defendant. That way, I could use the written statements as admissions by a party opponent. That'd go a long way towards helping clear up the hearsay issues. When you dispute with a CRA and they send back a written statement telling you that the TL came back as verified, then you dispute with the OC and they send you a written communication telling you that the TL is accurate, it makes it very difficult for them to claim that the CRA screwed it up.

I have disputed numerous times. Now, while I still catagorically deny owing any of these outstanding alleged debts, all three OCs in the outstanding debts have replied with documentation on their side of the story. Fun part is that documentation is no where near what they were reporting.

Things like C/O in 2008 but the CR shows paid as agreed up to 2011 then default and C/O.

One was running the tradeline twice changing the first two digits of the account number.

One once claimed I filed BK as a statement on my TL for the account.

Always came back verified.

One of the OCs I have mailed at least 4 letters to (CMRRR) the address listed on my credit report. All have been returned as Undeliveralbe as addressed.

One of the others two or three letters were returned this way.

The one without an outstanding debt showing just ignored all diputes I mailed them.

Everything kept coming back verified.

After legnthy fights with the CRAs, these are now being reported as it states in the documents they sent me (for the most part, minor discrepancies) BUT the fact is they did commit a violation and it did have a negative impact upon me resulting in real damages.

[rambler]

If anybody has won a TFC 392/TDTPA case either by them settling or actually going to court could you please PM me. Got a couple specific questions on the matter.

[legaleagle]

When you sue them, request a notarized certfied copy of your credit reprt in a form that is acceptable to the court. If they won't do it get a subpoena and make them do it. Then you can compare it to what you seem to already have and see if they made any changes.

[rambler]

When you sue them, request a notarized certfied copy of your credit reprt in a form that is acceptable to the court. If they won't do it get a subpoena and make them do it. Then you can compare it to what you seem to already have and see if they made any changes.

Will do. Thing is I will need certified copies from each of the dates of the ones I have to show how it changed month to month, and how it would change in response to a dispute. This is my basis for willful noncompliance. Not just that they reported false information, but they did so in a manner to inflict as much damage as possible and was in response to me disputing the debt to begin with.

[Coltfan1972]

Whether what was reported in the report or not is accurate is not supported by the document itself and isn't being introduced for this purpose- therefore not hearsay.

Right, but then you get to the part about the accuracy of what is reported on the document (credit report) being inaccurate, another element you have to meet to win. That is when the credit report becomes useless if the party being sued disputes the accuracy of the report.

The party being sued shows records where they reported accurately, and the Plaintiff is left holding a credit report with no way to dispute what the Plaintiff alleges. That is when the Plaintiff loses.

The way to do it is to sue the CRA as somebody else pointed out, and let them all turn on each other.

[rambler]

Right, but then you get to the part about the accuracy of what is reported on the document (credit report) being inaccurate, another element you have to meet to win. That is when the credit report becomes useless if the party being sued disputes the accuracy of the report.

The party being sued shows records where they reported accurately, and the Plaintiff is left holding a credit report with no way to dispute what the Plaintiff alleges. That is when the Plaintiff loses.

The way to do it is to sue the CRA as somebody else pointed out, and let them all turn on each other.

I plan on listing experian and TU as defendants in this case. Either they turn on the furnishers and dish out all the false informtion they provided, or share the blame (maybe take it all).

I have a feeling tu and experian may try and settle. If they do, I will require they provide at a minimum sworn affidavits of what these companies furnished. That should do it right? If they do plan to defend...well that will incriminate the other parties and either way works for me.

[Coltfan1972]

Affidavits are hearsay. The other side can't cross examine an affidavit. You would have to get witnesses in court to authenticate any evidence that you are offering to establish something as the truth, unless the document is self authenticating.

In all honesty, this is the problem we drag creditors and junk debt buyers through all the time. Unfortuantely, it works both ways. I was unable to introduce a lot of evidence I wanted to introduce because I simply could not afford or did not want to pay, to get the evidence authenticated (medical records). No way I was paying a doctor to come testify. I think it would have been 2500.00 for the doctor to testify.

Remember though, you can use discovery and that is admissible at trial. Be strategic with your requests and you can get them to authenticate evidence, not all the time, but it can be done. Espicially if the request appears to be an irrelevant requests or a request where little would be gained from answering.