Writing FCRA Dispute Letters
The Fair Credit Reporting Act requires that a consumer request “reinvestigation” of disputed items before he/she can sue an entity that has provided (“furnished” in the terms of the FCRA) inaccurate data to a consumer reporting agency. This letter acts as a type of “last chance” letter, giving both the credit report furnishers and the CRAs the ability to stop doing what they are doing and fix the problem. Throughout this post we will use the term “furnisher” to refer to the banks, credit companies, and all others who provide credit reporting agencies with your credit history, performance, and information.
While the FCRA and a number of other statutes require companies to respond and take certain steps when faced with a consumer dispute letter, there is only one letter that counts for purposes of the FCRA: A letter to the credit reporting agency that is reporting the inaccurate information. The FCRA requires that the consumer draft a dispute letter directly to the credit reporting agency – not the furnisher — as a condition of being able to sue under the statute.
While the credit bureau can be held liable without first receiving a dispute letter, under some circumstances, not so with the furnisher. Unless the consumer has written to the credit reporting agency, there is simply no claim under the FCRA against the creditor. If the letter is written to the bureau, both may be held liable. This may not make sense, but it is the law.
Many attorneys and consumers have not written these letters and will not know how to. A knowledgeable and experienced consumer attorney who is familiar with underlying the reinvestigation process can assist by drafting the letters for you to sign.
We will now dive into this process in detail. Pay attention, read carefully, and refer back to these steps, bearing in mind that you may need to look back at these steps a few months down the line if you are perhaps responding to correspondence from a credit reporting agency. This is not just a list of the “top ten list. Many of these suggestions arise out of cases where consumers have either lost their case or successfully beaten back attempts by credit bureaus to dismiss their case.
What follows is a, accurate, carefully laid out path you can use to stand up for your rights as a consumer, as provided for by the Fair Credit Reporting Act.
1. The Reason to Write a Dispute Letter
Under the Fair Credit Reporting Act, you have an opportunity to dispute any information in your credit file which you believe to be inaccurate. By submitting your dispute to the credit reporting agency, you put the bureau on notice that they are publishing inaccurate information and give them the opportunity to stop. Secondly, by writing your dispute letter you begin the process of perfecting your rights under the Fair Credit Reporting Act. We want to provide enough information that, if your case ever goes to trial and your correspondence is submitted as evidence, it would cause a reasonable juror to scratch his/her head at why this was not removed.
2. What Form of Dispute to Make
The disputes that you submit to the credit reporting agencies are important for any number of reasons, not the least of which is that these reinvestigations may become the subject of a lawsuit if you are unsuccessful in resolving the matter informally. As such, these reinvestigations should be treated with care and be in a written form so that there is a document trail establishing your efforts to clear up any problems with your credit history. In other words, treat reinvestigations as though they will become evidence: Write them neatly, with a polite but firm tone. “Just the facts, ma’am.” Do not include a long story, resort to foul language, or start name-calling. Include any relevant documents or information that you have available. Send the letters by certified mail, return receipt requested.
3. Submitting a Dispute by Telephone
Even though the credit reporting agencies offer consumers the opportunity to submit disputes by telephone, telephone investigations present a number of difficulties. In some cases, credit bureaus may deny that any request for investigation occurred at all. Similarly, telephone disputes do not allow you to easily make a record of what was disputed or the evidence that was offered to the agency. Additionally, telephone disputes do not provide any opportunity to submit documents that are relevant to the dispute. While these disputes present problems, they may be used as a means of following up on a prior dispute, or finding out why a previous dispute was rejected. If you decide in favor of having disputing an entry by phone, make sure to do this in a way that preserves the evidence of the call, such as recording, making notes, and keeping a call log. Check your state for laws covering the recording of phone calls or consult a local attorney to find out if this is legal.
4. Submitting a Dispute Electronically
Electronic disputes suffer from some of the same problems that telephone disputes do, but have additional problems. In specific, many of the credit reporting agencies require consumers to navigate through a number of pop-up boxes before being able to take action on their credit file. These pop-up boxes can, and often do, contain waivers of your rights including your right to sue in a court with a jury. You may not be given an opportunity to keep copies of these waivers, and you may not even read them before consenting. Since you cannot proceed with the electronic dispute without agreeing to these waivers, you should not begin this process. Again, written disputes, sent certified mail to the address specified by the credit reporting agency is the preferred means.
5. Keep Copies at Every Step
Do not rely on the credit reporting agencies to keep copies of your disputes. (They do not even keep copies of the reports that they publish about you.) Often enough, these disputes are misplaced and never acted upon by the bureaus. Your dispute should be sent certified mail, return receipt requested. Additionally, the bureaus may only keep records for two years, and the history of your dispute may extend over five or ten years. You should make a complete photocopy of the dispute in the exact form that it was sent to the bureaus, signature and exhibits included. This copy should be stored in a safe place so that it can be easily retrieved if you have to refer to it again or need it for evidence. Better yet, scan copies and keep them safe on your computer and a backup site.
6. Understand Your Audience
Your initial audience includes the individuals opening your letter, likely “boiler room operators”, staring at computer screens, insulated from any real access to data about the dispute they are handling. But again, your audience will most likely later include the Judge and Jury, as well as opposing counsel. Remember at all times: You are drafting may ultimately become a trial exhibit. So, make the letter plain, clear, and easy to understand. It must be absolutely accurate.
7. Send the Dispute to the Relevant CRAs and the Furnisher
If the only thing that a consumer does is to write a letter to a furnisher of credit data, then that consumer will have no claim at all against that creditor. While the FCRA requires that furnishers respond to direct disputes and conduct investigations of the dispute, the Act clearly provides that there is no private right of action for failures to do so.
In order to trigger an enforceable duty, the consumer must direct his dispute to the CRA. Once the CRA has received the dispute, it will forward a summary of the dispute to the furnisher, which will trigger an enforceable duty on the part of that furnisher to conduct an investigation.
While sending a letter to the Furnisher will not trigger an enforceable statutory duty, there are other important reasons to send the letter to the furnisher. First, the furnisher does have a duty to conduct an investigation using all materials that are reasonably available to it. This can mean a dispute letter that has been copied to it by the consume can provide a better chance of holding that responsible if they do not correct their actions. More importantly, if the letter to the furnisher contains information which no reasonable person could have ignored, that letter may improve your chances of getting the item corrected.
In short, you should direct your dispute letter to the CRA in order to trigger the private right of action, but you should also prepare a cover letter and copy for the furnisher to improve your ability to recover.
8. Make your Dispute Detailed
Your dispute should contain enough facts and details to support the credibility of your dispute. The more details you provide, the more credible your dispute will appear. Remember that the details should relate directly to things that will undercut the furnisher’s liability, not side issues that distract. Details like names, phone numbers, e-mail addresses and contact information add to the credibility and duty of the CRA, as can exhibits.
9. Turn the Dispute into Legally Admissible Evidence as a Declaration or an Affidavit
One of the best ways to bolster the credibility of your dispute and ensure its admissibility is to sign the letter under penalty of perjury as a declaration. Unlike affidavits, declarations do not need a caption, a case number, or a notary. While a declaration does not require any of the legal trappings of an affidavit, it has the same legal force when submitted in federal court. In addition to these benefits, the fact that your client has submitted a declaration in connection with a dispute provides a legal evidence in support of their dispute. For almost all relevant purposes, a declaration is as good as an affidavit.
10. Include Relevant Documents
Include documentation that supports your dispute. If you are reporting an identity theft, you should be sure to include any information, affidavits or police reports relating the theft. If you have been a victim of a mixed file, you should include copies of whatever reports you have showing the problem, which may include subscriber copies of reports, tri-merges, or consumer disclosures. If you have won a court case about the dispute, include those papers as well. The important point is, if you have documents to show that you are telling the truth, include them with the dispute letter. Whatever documents you include, be sure to mention the enclosures by name in the body of your letter; bureaus are notorious for losing these documents and claiming they were never sent.
11. Provide Exemplars and Notaries where Appropriate
In those cases where someone has forged your signature, be sure to include exemplars of your own signature, along with a notary signature where appropriate. Notarization is an attestation that the document actually comes from the individual who signed the document. The fact that the document is notarized, is itself proof of the identity of the individual who signed. Providing these pieces of evidence will invite the CRA to perform a comparison on its own. As always, call out any attachments by name in the correspondence so the CRAs cannot claim not to have received them. (which happens often) And keep copies of anything you send!
12. Demand that All Information be Forwarded
The FCRA provides consumers with certain rights to information from both credit bureaus, and companies that provide information to those credit bureaus. When disputing information directly to company that has opened an account related to an identity theft, the consumer is entitled to receive copies of all the account documents and billing statements related to that account. Similarly, when disputing to a credit bureau, the consumer may request information about the process that was used to verify any account information. This provision applies all disputes to bureaus, not just those relating to identity theft.
13. Invite Further Correspondence and Provide Preferred Contact Information
Include relevant contact information, including a cell phone number and e-mail address. Let the bureau know that you are willing to help or provide more information that may be necessary. Make yourself easy to get a hold of. Remember, if you are seeking fast results, it is best to provide the recipients with the ability to contact you quickly and conveniently. While some creditors do not interact with customers over the internet, many have e-mail capabilities. You should invite their use and advise the recipient that you can transmit and receive documents by this means if you have that capability.
14. Respond to Correspondence Appropriately
Be sure to carefully review and respond to any correspondence returned by the agency. In many cases, the bureaus respond to disputes by either refusing to investigate or by demanding that you take additional steps that may be self-contradictory. If the agency’s response is confusing or self-contradictory, be sure to point that out in your response and ask for clarification of what they are seeking or need. Again, send your correspondence certified mail, return receipt requested, and keep copies of what you send.
At the conclusion of the reinvestigation process (and sometimes during that process) the credit reporting agencies may notify you how it is that they conducted the reinvestigation. Frequently, those notices will explain that the information provided could not be used, or that there was not enough information provided by you. If your reinvestigation request is denied for any reason, you should immediately follow up with the bureau and request an explanation of why this was so. If the materials you submitted were rejected, ask why. If the results do not make sense, explain why they don’t make sense to you and ask that the process be done again. Remember, commons sense rules the day, and you are free to point this out, forcefully but respectfully.
15. Refer to Prior Disputes by Date
In many instances, items that you are disputing have been disputed previously, and possibly removed previously. If this is the case, then make sure that you include a reference to the prior reinvestigations and results. If the item was removed, incorporate the information that you included previously. If the item was not removed in the previous dispute, summarize that information again and provide whatever additional information you may have assembled.
16. Refer to Prior Account Numbers When Available
In many instances, furnishers of credit data will change account numbers of accounts held by consumers. These changes can play havoc with the consumer’s ability to track their own credit file. For instance, when a credit card account is compromised by fraud, the credit card company will typically close that account, open an new account and transfer all account charges to the new account. At the same time, debt collectors who buy accounts typically assign each account a new account number when that account is received and loaded into its systems. When any of these things happen, the consumer may no longer recognize his or her own account. By the same token, if an account has reappeared on a consumer report, many times the consumer reporting agencies do not correlate accounts according to their prior account numbers. Consequently, consumers may have to re-dispute these items. In cases where the consumer knows the prior account numbers used to identify a disputed debt, you should include these account numbers in your dispute along with the name of the company that gave the account that number.
17. Ask for Specific Actions
The Fair Credit Reporting act provides for several informal remedies to consumers as part of the dispute process. These remedies can include:
✓ Placing a fraud alert on the consumer’s file.
✓ Freezing or blocking access to the file for instant credit checks.
✓ Blocking fraud accounts if the consumer has provided a police report or a fraud affidavit.
✓ Requiring the consumer reporting agency to explain its processes.
✓ Requiring the consumer reporting agency to provide updated copies of reports to users.
✓ Requiring the furnisher of information that has been disputed as a fraud to turn over account documents.
So, when you draft your dispute, be sure to include appropriate requests for help. These requests, while often ignored by the CRA, can help to establish that the bureaus have thrown roadblocks into your path, whereas your requests would have helped to remedy the situation.
18. You Sign the Letter, not the Attorney
You should sign your own dispute letter, instead of an attorney who may have drafted the letter for you. Attorneys who sign and mail their client’s dispute letter run the risk of becoming a necessary, material witness in their client’s case. A smart attorney knows in this case never to sign a dispute letter on their client’s behalf.
19. Include Identification
The Credit Reporting Agencies have, of late, begun demanding an excessive amount of identification from consumers before providing disclosures. They have also begun demanding that this identification be provided before investigating disputes in some instance. If this happens, your dispute can be delayed by several months. You can head off these problems by including identification in your dispute or request for a report. You should include at least one form of photo identification and a current bank or utility bill. When you send the letter, be sure to keep a copy of all enclosures, and as we’ve said, name the attachments in your letter as further proof you’ve sent them.
If you’ve made it this far, wonderful. You are on your way to asserting your rights under the Fair Credit Reporting Act. Bookmark this blog post and refer back to it when needed, or share it with a friend or family member who needs the information. If you find this blog post helpful, Like us on Facebook.
Below you will find a few resources to help along the way. Thanks for reading. See you again soon!
Disputing Errors on Credit Reports http://www.consumer.ftc.gov/articles/0151-disputing-errors-credit-reports
What You Should Know About Your Credit Report http://www.nclc.org/images/pdf/older_consumers/consumer_facts/cf_what_you_should_know_about_credit_report.pdf
The Annual Credit Report order form http://www.consumer.ftc.gov/articles/pdf-0093-annual-report-request-form.pdf
Sample letter from the FTC http://www.consumer.ftc.gov/articles/0384-sample-letter-disputing-errors-your-credit-report
How do I dispute at error on my credit report? (from the CFPB) http://www.consumerfinance.gov/askcfpb/314/how-do-i-dispute-an-error-on-my-credit-report.html
If you need help with these or other consumer rights issues, give us a call at (248) 208-8864 or visit us at www.MichiganConsumerLaw.com