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James J. Hanson v. Experian Information Solutions

January 27, 2012

JAMES J. HANSON, PLAINTIFF,
v.
EXPERIAN INFORMATION SOLUTIONS, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff James J. Hanson has sued defendant Experian Information Solutions, Inc., under the Fair Credit Reporting Act ("FCRA") alleging that defendant: (1) failed to follow "reasonable procedures to assure the maximum possible accuracy" of the information in plaintiff's consumer report in violation of 15 U.S.C. § 1681e(b); and (2) defendant's failure to conduct a "reasonable reinvestigation" upon receipt of plaintiff's dispute that information in his consumer report was inaccurate in violation of § 15 U.S.C. § 1681i(a)(1). Defendant has moved for summary judgment, arguing that it reported plaintiff's account accurately as a matter of law and that its reinvestigation was reasonable as a matter of law. Because key material facts remain in dispute, defendant's motion is denied.

FACTS

Sometime in late summer 2009 plaintiff began receiving notices from various banks that his credit accounts were being cancelled or his credit limits reduced because of negative information appearing on his credit report. In November 2009 plaintiff telephoned Trans Union, LLC to ask about the source of the negative information. He learned that Barclays Bank Delaware had reported him as being delinquent on a credit card. Plaintiff later learned that the account also appeared on an Experian credit report dated December 24, 2008.

At that time plaintiff had a Barclays credit card account ending in # 9790. That account was in good standing and was listed under plaintiff's then current address on Farwell Avenue in Chicago, where he had lived since May 2007. The reportedly delinquent card had an account number ending in #0234 and was listed as a negative item opened in April 2008, with a past due amount of $211. The account showed that plaintiff had never made a payment. The delinquent account was listed under plaintiff's previous address on Claremont Avenue in Chicago. Plaintiff had not lived at that address since early 2007.

Plaintiff later learned that the allegedly delinquent account was an AirTran credit card offer by Barclays that plaintiff had applied for but never received, activated, or used. Plaintiff applied for the card in April 2008 while traveling. He was solicited to apply for the card while at the airport in Atlanta, Georgia. According to plaintiff, someone approached him on foot, offering free AirTran tickets as among the benefits for use of the card. Plaintiff has testified that he was never informed of the terms and conditions of the card. He filled out a paper application on which he provided his current address on Farwell Avenue.

A few weeks later plaintiff received a letter at his Farwell address from AirTran explaining the rewards program. Plaintiff had not received the AirTran card or any paper work from Barclays. Because he never received the card, he never activated or used it.

The person who solicited plaintiff at the airport worked for a third-party company hired (apparently by Barclays) to solicit credit card applications. Barclays did not receive the paper application, and neither Barclays nor Experian has produced it. Barclays relies on the third-party company to mail the applicant the card member agreement, the credit card, and the terms and conditions upon approval. Barclays has produced a printout of a computerized version of plaintiff's application that indicated plaintiff's address as on Claremont. Barclays' records show that the card and card member agreement were mailed to plaintiff at the Claremont address on May 6, 2008.

The terms and conditions of the card indicate that there is an annual fee. They also provide, "I understand that the use of any account opened or any card issued in connection with this offer will constitute my acceptance of and will be subject to the terms and conditions of the Barclays' card member agreement that will be sent to me." The amounts owed on the account consist solely of the annual fee and interest.

Barclays' records indicate that the plaintiff called them on November 21, 2009, to "update the address" associated with the account. Plaintiff does not recall calling Barclays or ever contacting Barclays about the account.

On February 1, 2010, plaintiff wrote to Experian indicating that in reviewing his credit report he found a negative item with which he disagreed, indicating that the item was the Barclays card. His letter stated, "[T]his card was never issued to me nor did I ever use this card. I am unaware of how a balance of $211 was incurred. I would appreciate it if you could look into this matter and inform me how something like this could have happened."

After receiving the letter, defendant contacted Barclays via an Automated Consumer Dispute Verification ("ACDV") form, quoting plaintiff's letter. The ACDV form listed the Farwell address as plaintiff's current address and the Claremont address as plaintiff's previous address. Barclays responded with a simple generic code "01-account information accurate as of date reported." Barclays marked in its response that its records showed the Farwell address was the "same" and the Claremont address was "unknown."

In addition to sending Barclays the ACDV form, defendant claims to have reviewed its own records to determine that the Barclays' account was accurately reported on plaintiff's credit report. On February 24, 2010, defendant mailed to plaintiff the results ...


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