California Complaint Against Experian, Capital One Bank for Reporting Consumer ‘Deceased’ When Consumer is Alive, Making it Impossible for Consumer to Obtain Credit

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

 

JANE DOE          Plaintiff,    v.     EXPERIAN INFORMATION SOLUTIONS, INC. and CAPTIAL ONE BANK USA NA             Defendants.

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Civil Action No.                                 Complaint for Violation of Fair Credit Reporting Act    Demand for Jury Trial

 Preliminary Statement

1. This is an action for damages brought by an individual consumer, against Defendants Experian Information Solutions, Inc., and Capital One Bank USA NA for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681, et seq., as amended and various other state laws.

Jurisdiction and Venue

1. Jurisdiction of this court arises under 15 U.S.C. § 1681p and 28 U.S.C. §§ 1331 and 1337 and supplemental jurisdiction exists for the state law claims pursuant to 28 U.S.C. § 1367.
2. Venue lies properly in this district pursuant to 28 U.S.C. § 1391 (b).

Parties

1. Plaintiff is an adult individual residing in Salt Lake City, Utah .
2. Defendant Experian Information Solutions Inc., (“Experian”) is a consumer reporting agency that regularly conducts business in the Central District of California, and which has a principle place of business located at 475 Anton Boulevard, Costa Mesa, California  92626.
3. Defendant, Capital One Bank USA NA. (hereafter “Capital One”) is a business entity that regularly conducts business in the Central District of California, and which has a principal place of business located at 15000 Capital One Drive, Richmond, VA 23238.

Factual Allegations

1. Defendants have been reporting derogatory and inaccurate statements and information relating to Plaintiff and Plaintiff’s credit history to third parties (“inaccurate information”) from at least August 2012 through present.  The inaccurate information includes but is not limited to being marked as deceased in connection with a Capital One account reporting on Plaintiff’s Experian credit report.
2. The inaccurate information negatively reflects upon Plaintiff, Plaintiff’s credit repayment history, Plaintiff’s financial responsibility as a debtor and Plaintiff’s creditworthiness.
3. Experian does not request or require a death certificate from any of its data sources which advise that a consumer is “deceased” before placing a “deceased” mark on that consumer’s report.
4. Experian does not request or require any proof from any data source which advise that a consumer is “deceased” showing that the consumer is, in fact, deceased before placing a “deceased” mark on that consumer’s report.
5. Experian does not independently verify with any source that a consumer is, in fact, deceased before placing a “deceased” mark on that consumer’s report.
6. Experian has been reporting the inaccurate information through the issuance of false and inaccurate credit information and consumer credit reports that they have disseminated to various persons and credit grantors, both known and unknown.
7. Experian is regulated as a “consumer reporting agencies” (“CRAs”) under the FCRA.  15 U.S.C. § 1681a(e).
8. Experian sell millions of consumer reports (often called “credit reports” or “reports”) per day, and also sell credit scores.  15 U.S.C. § 1681a(e).
9. Pursuant to the FCRA, Experian must follow procedures which assure that the reports they sell meet the standard of “maximum possible accuracy.”   15 U.S.C. § 1681e(b).
10. Pursuant to the FCRA, Experian must maintain reasonable procedures to assure that reports are sold only for legitimate “permissible purposes.”  15 U.S.C. §§ 1681e(a) & 1681b.
11. Experian places a “deceased” notation or marking on reports when they are advised from any of their many data furnishing sources that a given consumer is deceased.
12. The furnishing sources identify “deceased” consumers by marking the “status” of such consumer’s responsibility for any subject account with an “X” code in the ECOA field of an electronic data input format used in the credit reporting industry, known as Metro or Metro 2.
13. Experian does not request or require a death certificate from any of their data sources which advise that a consumer is “deceased” before placing a “deceased” mark on that consumer’s report.
14. Experian does not request or require any proof from any data source which advise that a consumer is “deceased” showing that the consumer is, in fact, deceased before placing a “deceased” mark on that consumer’s report.
15. Experian does not independently verify with any source that a consumer is, in fact, deceased before placing a “deceased” mark on that consumer’s report.
16. A deceased notation is a very unusual marking upon a credit file or credit report.
17. In some cases, in order to assure accuracy, Experian sends letters and/or other communications to consumers when certain information that may be considered suspicious or unreliable is furnished about said consumers to be placed in their Experian credit file, such as in cases where consumers have a freeze or fraud alert on their credit report, or in accordance with certain state laws, such as the consumer laws of Colorado.  But Experian has no similar procedure to notify the consumers (such as a next of kin or executor or administrator of the consumer’s estate) when an “X” deceased code is furnished to Experian to be placed in said consumer’s credit file or report.
18. Experian regularly receives the “Death Master File” from the Social Security Administration listing by social security number those consumers that the government believes to be deceased.   But Experian does not cross-reference the “X” code received from furnishers with the Death Master File in order to determine whether any given consumer reported as deceased via a furnishing source is also on the Death Master File before selling a credit report about said consumer, or at any time.
19. Experian will only use the Death Master File to sell additional products for an additional fee which are designed to show whether a given consumer is truly deceased.
20. Indeed, Experian employs no procedures at all which assure that a consumer with a “deceased” mark on his/her report is, in fact, deceased before placing the “deceased” mark on that consumer’s report and selling that report.
21. Even in instances where other data on the face of the consumer’s report indicates that he/she is not deceased, Experian employ no procedures which assure that a consumer with a “deceased” mark on his/her report is, in fact, deceased before placing the “deceased” mark on that consumer’s report.
22. Even in instances where the purportedly deceased consumer communicates directly with Experian, Experian employs no procedures which assure that a consumer with a “deceased” mark on his/her report is, in fact, deceased before placing the “deceased” mark on that consumer’s report.
23. Once a “deceased” mark is placed upon a consumer’s report, Experian will not calculate and will not provide a credit score for that consumer
24. Nevertheless, Experian routinely sells to third parties credit reports for persons with a “deceased” mark on their reports with no credit score, despite a request by the purchaser of the report for a credit score for that consumer.
25.  Upon Experian’s reports with a “deceased” mark sold to third parties, Experian never calculate or provide credit scores for that consumer.
26. Experian knows that third party credit issuers use a credit score in order to process a given credit application.
27. Experian knows that many third party credit issuers require a credit score in order to process a given credit application.
28. Experian knows that consumers without credit scores are unable to secure any credit from most credit issuers.
29. Experian knows that living consumers are turned down for credit specifically because Experian is reporting them as “deceased” and without a credit score.
30. Experian has been put on notice for years through consumer disputes and lawsuits that living consumers are turned down for credit specifically because Experian is reporting them as “deceased” and without a credit score.
31. Experian has received and documented thousands of disputes from consumers complaining that Experian credit reports have them erroneously marked as “deceased.”
32. Experian knows that thousands of consumers are erroneously marked as “deceased” on their Experian credit reports via an erroneous furnishing of the “X” code, but said consumers are not on the Death Master File and are, in fact, alive.
33. Nevertheless, Experian employs no procedures which assure that a consumer marked as “deceased” on one of Experian’s reports is, in fact, deceased.
34. Even consumers who dispute the erroneous “deceased” status on their Experian credit reports continue to be erroneously marked as deceased unless the furnishing source which provided the erroneous “X” code in the first instance decides to change the code.
35. Experian has no independent procedures to change an erroneous deceased status on their own and will merely parrot their furnishing source in the case of a reinvestigation into the accuracy of the deceased status upon a consumer’s report, which reinvestigation was triggered by a consumer dispute.
36. Nor does Experian employ any procedures to limit or stop the furnishing of reports to third parties for consumers which they have marked as “deceased” under any circumstances.
37. For years after a consumer’s actual death, Experian will continue to sell credit reports about that consumer.
38. Experian will only remove a deceased consumer’s file from their credit reporting databases when they are no longer valuable to Experian – meaning that nobody is continuing to buy that report from Experian.
39. Experian charges third parties a fee for reports with a mark that a consumer is deceased (“reports on the deceased”) as they would for any other report.46.
40. Experian profits from the sale of reports on the deceased.
41. Experian has in its credit reporting database hundreds of thousands of “deceased” tradelines corresponding to distinct credit files for individual consumers that they have marked as “deceased.”
42. Experian knows that truly deceased consumers do not apply for credit.
43. Experian knows that the credit information and reports of truly deceased persons are used by criminals to commit identity theft or credit fraud.  Indeed, identity theft using the personal identifying information of deceased consumers is known to Experian to be a common and major source of identity theft.
44. Experian knows that identity theft and credit fraud are serious and widespread problems in our society.
45. Experian warns the relatives of truly deceased consumers that identity theft can be committed using the credit reports and information of the deceased, and requires relatives to provide a death certificate or executorship papers, among other proofs, before accessing the deceased consumer’s credit information or report.
46. Experian has no similar death certificate, executorship paper, or any other proof requirements for its data sources which report a consumer as deceased or for the buyers of their reports which access the purportedly deceased consumer’s information.
47. Indeed, Experian sells reports on the deceased to third parties in an automated fashion and without any specific or general certification that could reasonably explain a “permissible purpose” for purchasing or using a (supposedly) deceased consumer’s credit history and/or report.
48. For consumers who are deceased, there exists no permissible purpose under the FCRA for Experian to ever sell its credit reports, absent a court order.
49. Experian knows that such reports contain a vast amount of personal identifying and credit account information on the supposedly deceased consumer, information that can be used to commit identity theft or for other fraudulent purposes.
50. For a period of time since August 2012 Plaintiff had been marked by Defendants as “deceased” on her Experian credit report.
51. Plaintiff is not deceased.
52. Experian did not calculate or provide any credit score for or on Plaintiff, even though it sold reports about her to third parties marking her as “deceased.”
53. Plaintiff was declined for credit in August 2012.  Among other transactions, known and unknown, Experian sold a credit report marking Plaintiff as deceased to Bank of America on, or around, August 20, 2012 when Plaintiff applied for an loan through that business
54. As a result, Experian made it practically impossible for Plaintiff to obtain credit, and Plaintiff was indeed turned down for a loan to purchase an automobile in July 2012 as a result of Experian’s report erroneously marking Plaintiff as deceased.  Plaintiff also suffered harm to credit reputation and emotional distress as a result of Experian’s conduct.
55. At all times pertinent hereto, Defendants were acting by and through their agents, servants and/or employees who were acting within the course and scope of their agency or employment, and under the direct supervision and control of the Defendants herein.
56. At all times pertinent hereto, the conduct of Defendants, as well as that of their agents, servants and/or employees, was intentional, willful, reckless, and in grossly negligent disregard for federal law and state laws and the rights of the Plaintiff herein.

Count One – Violations of the FCRA

(Plaintiff v. Experian)

1. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
2. At all times pertinent hereto, Defendant was a “person” and a “consumer reporting agency” as those terms are defined by 15 U.S.C. § 1681a(b) and (f)
3. At all times pertinent hereto, Plaintiff was a “consumer” as that term is defined by 15 U.S.C. § 1681a(c).
4. At all times pertinent hereto, the above-mentioned credit reports were “consumer reports” as that term is defined by 15 U.S.C. § 1681a(d).
5. Pursuant to 15 U.S.C. § 1681n and 15 U.S.C. § 1681o, Experian is liable to the Plaintiff for willfully and negligently failing to comply with the requirements imposed on a consumer reporting agency of information pursuant to 15 U.S.C. § 1681e(b).
6. The conduct of Defendant was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, actual damages and harm to the Plaintiff that are outlined more fully above and, as a result, Defendant is liable to the Plaintiff for the full amount of statutory, actual and punitive damages, along with the attorney’s fees and the costs of litigation, as well as such further relief, as may be permitted by law.

Count Two – Negligence

(Plaintiff v. Capital One)

1. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
2. Capital One’s negligence consists of failing to employ reasonable procedures to ensure that Plaintiff’s account was not categorized as deceased when she is very much alive.
3. As a result of Capital One’s above mentioned conduct, Plaintiff sustained and continues to sustain the losses and damages as set forth above.
4. The conduct of Capital One was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above.
5. The conduct of Capital One was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above.

Count Three – Invasion of Privacy/ False Light 

 (Plaintiff v. Capital One)

1. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
2. Plaintiff incorporates the foregoing paragraphs as though the same were set forth at length herein.
3.  Capital One’s above actions violated Plaintiff’s right of privacy by placing the Plaintiff in a false light before the eyes of others, including potential credit grantors and creditors as well as family, friends and the general public.
4. By such unauthorized invasion, publication and circulation of Plaintiff’s name and the inaccurate information, Capital One invaded Plaintiff’sright to privacy, subjected Plaintiff to ridicule and contempt, injured Plaintiff’s personal esteem, reflected disgracefully on Plaintiff’s character, diminished Plaintiff’s high standing, reputation and good name among family, friends, neighbors and business associates, destroyed Plaintiff’s peace of mind, and caused Plaintiff severe mental and emotional distress.
5. The conduct of Capital One was a direct and proximate cause, as well as a substantial factor, in bringing about the serious injuries, damages and harm to Plaintiff that are outlined more fully above and, as a result, Capital One is liable to compensate the Plaintiff for the full amount of actual, compensatory and punitive damages, as well as such other relief, permitted under the law.

Jury Trial Demand

1. Plaintiff demands trial by jury on all issues so triable.

Prayer for Relief

WHEREFORE, Plaintiff seeks judgment in Plaintiff’s favor and damages against the Defendants, based on the following requested relief:

1. Statutory damages;
2. Actual damages;
3. Punitive damages;
4.  Costs and reasonable attorney’s fees pursuant to 15 U.S.C. §§ 1681n and 1681o; and
5. Such other and further relief as may be necessary, just and proper.

Respectfully Submitted,

 

_____________________

Stephanie R. Tatar

The Tatar Law Firm

3500 West Olive Avenue

Suite 300

Burbank,  CA 91505

Telephone: (323) 744-1146

Facsimile: (888) 778-5695