Michigan Reentry Law Wiki

Sample Letter to Credit Reporting Company Demanding Damages for Inaccurate Record

From Reentry

June 6, 2008

USIS Commercial Services
Attention Legal Department
P.O. Box 33181
Tulsa, OK 74153

Re: Damage Claims of Jane Doe, DOB XXXXXX

Dear Counselor at Law:

I am writing to inform you that an error in a criminal background check prepared by USIS cost my client, Jane Doe, her job, and to demand that you compensate my client for the damages she has suffered as a result.

Ms. Doe was employed as a driver by Driving Company. According to Driving Company, a routine personnel file audit showed that Ms. Doe’s background check document was missing from her file. Driving Company therefore conducted a background check through USIS on December 7, 2007.

The 12/7/07 report prepared by USIS erroneously showed that Ms. Doe had a pending felony case in the 17th Circuit Court (file no. XXXXXXX). Specifically, that report showed, on page 2, a “final charge” for assault with a dangerous weapon, and listed the “final type” as a felony. Under disposition, the record states “this case is still active.” In the notes the entry indicated that “next date of court activity scheduled for 04/02/07” – in other words eight months prior to the date of the report. Under count 2, the final charge was listed as “habitual offender-third notice offense,” and the “final type” as felony. Again the disposition was listed as “this case is still active,” and the notes indicated that the “next date of court activity scheduled for 04/02/07.” See Attachment A (USIS 12/7/07 report).

This report was inaccurate in two respects. First, the report did not contain up-to-date information. As the attached register of actions shows, on 4/4/07 a plea was entered in the case. See Attachment B (Register of Actions). A judgment of sentence was entered on 5/23/07. See Attachment C (Judgment of Sentence). USIS’ report thus contained information that was months out-of-date.

Second, the USIS report suggests that Ms. Doe’s offense was a felony. In fact, the judgment of sentence shows that both felony counts were dismissed. The conviction was for attempted assault with a dangerous weapon, in violation of MCL 750.82(A). This conviction is for a misdemeanor, not a felony. See Attachment D (Letter from Judge B.).

As a result of the errors on the USIS report, Ms. Doe was terminated from employment on or about January 2, 2008. Ms. Doe was told that the basis for the termination was the fact that her background check showed a felony. Ms. Doe asked for a written statement explaining the basis for her termination. In a letter dated February 18, 2008, Driving Company confirmed that the basis for the termination was that Ms. Doe had a felony charge. It is Driving Company’s policy not to employ individuals with felonies. See Attachment E (Driving Company Letter). Although Ms. Doe attempted to explain that the felony charges had been dismissed, Driving Company relied on the report generated by USIS.

Ms. Doe subsequently contacted USIS to ask that the errors on her report be corrected. On March 19, 2008, USIS sent a letter to Ms. Doe along with a corrected background check report. The new report shows that Ms. Doe was convicted of a misdemeanor, and that the felony charges were dropped. See Attachment F (USIS 3/19/08 report). After Ms. Doe obtained the corrected report, she then worked with her union to get her job back. She was reinstated in her job, and resumed work on or about May 7, 2008.

By reporting out-of-date and inaccurate information about Ms. Doe’s criminal history, USIS has violated the Fair Credit Reporting Act (FCRA). FCRA requires that “whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. §1681e(b). Thus a credit reporting agency violates 15 U.S.C. §1681e(b) if “(1) the consumer report contains inaccurate information and (2) the reporting agency did not follow reasonable procedures to assure maximum possible accuracy.” Dalton v. Capital Associated Industries, 257 F.3d 409, 415 (4th Cir. 2001).

In addition to FCRA’s general requirement under 15 U.S.C. §1681e(b) that agencies adopt reasonable procedures to assure maximum possible accuracy of reports, FCRA also mandates specific procedures under 15 U.S.C. §1681k(a) whenever an agency reports information on matters of public record that are likely to have an adverse effect upon a consumer’s ability to obtain employment. The type of information covered includes “arrests, indictments, [and] convictions.” 15 U.S.C. §1681k(a)(2). Because USIS’ report included such information and was sent to an employer, USIS is subject to the higher standard set out in 15 U.S.C. §1681k(a).

Under 15 U.S.C. §1681k(a), USIS must – when supplying reports for employment purposes – either (1) notify the individual whose record is being reported, or (2) maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on the individual’s ability to obtain employment is reported, that information is complete and up-to-date.

Here, USIS has provided out-of-date and inaccurate information about my client’s criminal record. This shows that USIS has failed to meet the standards set out in 15 U.S.C. §1681e(b), much less the standards set out in 15 U.S.C. §1681k(a). USIS should have procedures in place to ensure that it provides up-to-date criminal record information.

As a result of USIS’ error, Ms. Doe has suffered significant harm. She was terminated from employment, and had to fight to get her job back. She was publicly humiliated in front of her co-workers, and suffered emotional distress and mental anguish as a result. She lost the income from her job for the months that she was unemployed. She fell behind on her bills, and incurred late fees. And she also incurred legal expenses trying to resolve the situation. USIS is liable for these costs. See 15 U.S.C. §1681n, §1681o.

I trust that USIS stands behind its product, and will take responsibility when it makes an error, as it has clearly done here. I am therefore asking that USIS pay Ms. Doe damages as follows:

Lost wages ($10.70/hour x 40 hours x 18 weeks):$7,704
Late fees on rent (Attachment G):150
Legal fees to attorney Walter Harris (Attachment H):580
Emotional distress$10,000
Total$18,434

I hope that we will be able to resolve this situation amicably. Please contact me at xxxxxx so that we can discuss this matter.

Sincerely,

Miriam Aukerman
Attorney at Law


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