BINDING ARBITRATION: DO YOU REALLY WANT TO GIVE AWAY YOUR CONSTITUTIONAL RIGHT TO A JURY TRIAL?

Quite often our clients learn the hard way that they “agreed” to give away some of their basic legal rights, including a trial by jury, when they purchased a new vehicle or telecommunications service, or other products and services. The sales contract or “agreement” had buried within it – most often on a subsequent page in fine print – legal language to the effect that the consumer agrees to “arbitration” in place of having their case heard in a court of law should their new car prove defective or their internet service doesn’t work or they are being ripped off on the billing, etc.

Usually, when we ask clients if they agreed to arbitration they respond with, “What’s that?” or words to that effect. Arbitration is defined by the American Bar Association as “a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments.” (https://www.americanbar.org/groups /dispute_resolution/resources/DisputeResolutionProcesses/arbitration/) When an arbitration is binding the arbitrator’s decision is final, so the arbitrator in effect is given the right to play judge and jury in determining the merits of your case and rendering a verdict.

Is it the client’s fault that he agreed to binding arbitration? No, for numerous reasons. First, the individual was not a lawyer and had no idea what arbitration was. Second, our client didn’t bring a magnifying glass so he/she could read the fine print on the third or eighth or thirteenth page of the legal-length contract replete with legal terminology.  Third, the consumer also forgot to bring a big legal dictionary along so all those loaded words and phrases could be looked up. Fourth, he/she didn’t have an attorney specializing in contracts present to advise them against agreeing to the arbitration clause. Fifth, the salesperson did not bother to explain to the consumer the arbitration part and see if they had any questions, even though that same salesperson will later testify under oath that they did explain everything. Sixth, if the consumer understood and refused to agree with the arbitration clause, in some cases the seller would simply refuse to sell the consumer the product or service. We could keep going but you get the idea.

But not all is lost if you get tricked into arbitration. Despite its many pitfalls and basic unfairness, we still fight hard and manage in many cases to get a good result for our clients.

Arbitration is a political issue as well.  When voting in any election, look into whether the candidate supports or opposes binding arbitration agreements.

To be clear, if one of my clients wants to have arbitration, I’m fine with it, and some clients do.  But some clients want their cases decided by a jury, and the threat of a jury trial often persuades big corporations to settle disputes rather than fight them to the bitter end.  There are advantages to having access to a jury trial, and consumers-citizens-voters must never lose sight of this.

I hope this short article has been helpful to you.  Thank you for reading.

Copyright © 2019 by Robert F. Brennan, Esq.  All rights reserved.

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CALIFORNIA LEMON LAW COVERS RV’S, FIFTH WHEELS, BOATS AND MOTORCYCLES

Our firm has been specializing in the handling of lemon law cases for over 25 years.  For most people, the term “lemon law” probably connotes a defective car, but over the years we have seen a lot more lemons than that: there are also lemon boats, Recreational Vehicles (RVs), fifth wheels and motorcycles, to name a few. Unlike cars, generally when RVs go bad they manifest a long “hit list” of defects that the owner notes down on paper and gives to the RV dealership to fix. And unlike cars, RVs can often take months to repair. On occasion the hit list may be so long that the dealership will try to make some of the repairs, then ask the owner to pick up their unit and bring it back sometime later so they can continue working on it.  

Very recently we settled an RV case involving a “Fifth Wheel” to a very good result.  (A Fifth Wheel is a towable RV that needs to be coupled to a second vehicle, such as a powerful pickup truck, to pull it.)  Our client and his family loved the great outdoors and were eager to see the country in their brand-new new trailer. They traveled from California to the Michigan to purchase the Fifth Wheel only to find that it was not ready for pick up due to uncorrected manufacturing defects. So began their ill-starred odyssey. Suffice it to say that one disaster led to another because of their first-class lemon. Our client’s dreams were dashed and, in the end, they were rarely able to use the Fifth Wheel, in spite of and even because of the extensive repairs.  

In this case, the defective coupling was the most serious problem. We hired an expert who detected several major issues.  The king pin kept bending. The welding of the hitch to the frame was poorly done and was broken. Bolts became loose when the Fifth Wheel moved at an angle. Part of the unit’s front fiberglass panel was cracked. In short, the problems were so serious that a local RV dealership had already refused to touch the unit and informed our client that it was far too unsafe to put on the road.

Fortunately, after a hard-fought battle the defendants were forced to confront the facts and the case settled in mediation.  As John Adams noted long ago, facts are stubborn things. 

Copyright © 2019 by Robert F. Brennan.  All rights reserved.

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RE-INSERTION VIOLATIONS

RE-INSERTION VIOLATIONS: WHEN A CREDITOR, A DEBT COLLECTOR OR A CREDIT BUREAU RE-INSERTS FALSE OR DEROGATORY INFORMATION ON YOUR CREDIT REPORT.

Our office has litigated a number of credit-damage cases in which the client disputed a delinquent account appearing on their credit profile, the derogatory suddenly disappeared for some months, but then started reappearing on their credit report once again without any advance notice. This is known as a “re-insertion violation” of the federal Fair Credit Reporting Act (FCRA).

It may seem mysterious why these re-insertion violations would keep cropping up, but the reason is usually quite simple: When you open an account the “original creditor” assigns it an account number, just as there are account numbers showing on the bills you receive in the mail.  The original creditor may not wish to bother with debt collecting and credit reporting, so it turns the tasks over to a debt collection company. That debt collector, unfortunately, assigns a new account number to the same account and reports it with that new number so anyone viewing it thinks it is a completely different account. Then, let’s say the original creditor is dissatisfied with the first debt collector and so assigns collections and reporting to another debt collector, which in turn gives the same account a still different account number.

Then you have a real mess – the same debt appears multiple times on your credit report, but with different account numbers, thus compounding each time the damage to your credit.

When this scenario is revealed in actual litigation it can be quite interesting. First, the credit reporting agency (CRA) denies it is the same account that is reporting even though everything is the same on the account except the altered account number. Then, when it becomes crystal clear that it is reporting the same debt on your credit report more than once, the CRA will argue that it is not their fault, for how were they supposed to know it was the same account that was derogatorily appearing more than once on your credit report?  How indeed! It was the CRA’s own policies, procedures and lack of oversight that allowed this snafu to happen in the first place.

The FCRA mandates that the CRAs, such as Experian, Equifax and Trans Union, “follow reasonable procedures to assure maximum possible accuracy of the information in the [consumer’s credit] report….” A willful and negligent failure to do so is a serious violation of the FCRA. One wonders then when certain CRA procedures, or lack thereof, assure maximum possible inaccuracy of information in the consumer’s report. Are we to take it that the words of a federal law mean exactly the opposite of what they say? We don’t think so. If you or someone you know has been victimized by the above-described injustice, please contact us as we may be able to help.

By the way, our office has done very, very well litigating reinsertion cases for our clients.

Thanks for reading.

Bob Brennan

Copyright © 2019 by Robert F. Brennan.  All rights reserved.

 

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UBER AND LYFT USING FLAWED BACKGROUND CHECKS WHICH SHOW FALSE CRIMINAL HISTORIES ON JOB APPLICANTS

Uber and Lyft pull background checks on all people who apply to be drivers.  Unfortunately, many of the background checks have false information that an applicant has a criminal record.

If you do not have a criminal record and you have been denied by Uber or Lyft, please contact us.  We know what to do.

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Redwood Times Car Warranty Repair Facility Article

Consumer protection attorney Bob Brennan quoted extensively in Redwood Times regarding your legal rights if a manufacturer does not keep warranty repair facilities close to where you live.

Read Full Article Here

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Following The Money

An estimated 25% of consumers’ credit reports have errors in them serious enough to cause a denial of credit, according to studies referenced by the National Consumer Law Center (NCLC). Forty million mistakes which are difficult to correct are made on credit reports, and 1 in 10 Americans have errors on their credit reports that might lower their credit scores, per a 60 Minutes Report interview by Steve Kraft. (Elizabeth Warren, A Fighting Chance, p. 313, n. 154; https://www.consumeradvocates.org/media/news/60-minutes-report-40-million-mistakes-your-credit-report-accurate)

One question that immediately comes to mind regarding these alarming statistics is: Who is causing all these errors to appear on your credit reports?  For starters, the answer would include retail merchants, financial institutions, debt collection companies and the credit bureaus themselves (especially Equifax, Experian and Trans Union). Sadly, although these entities are obligated by federal law to ensure maximum possible accuracy in reporting your credit information, they frequently have other fish to fry.

In the film All the President’s Men, a secret informant named “Deep Throat” famously directs Washington Post correspondent Bob Woodward to “follow the money” in the Watergate investigation. This is sage advice when it comes to litigation involving false credit reporting.

We recently took the deposition of the president of a debt collection company that was furnishing very derogatory information on a debt that was disputed by our client. When the president was asked why he made the decision to pursue litigation against our client, he responded, “I made a decision that there were assets, and that’s the basis on my decision, as to whether or not there are assets to pursue…And  based on my review, I thought that there were assets.” Note that his initial motivation was not to ensure the accuracy of his company’s reporting of the disputed debt, but to determine whether our client had money he could go after. He determined that she did so he gave it the “green light” for the next stage.

Until there is a much better system in place, the greed motivation will continue to predominate in the credit reporting industry. Unfortunately, so long as the foxes continue to guard the hen house you needn’t bother expecting any great zeal in policing the accuracy of the information contained in your credit reports.

Copyright © 2019 by Robert F. Brennan.  All rights reserved.

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A PEEK BEHIND THE SCENES AT A CREDIT REPAIR ORGANIZATION

Credit repair organizations are sprouting up like weeds and have been since the Great recession.  Americans are more conscious than ever before about the importance of having and maintaining good credit.  Without it, you will be treated like a poor person at any bank where you apply for a loan, and you will pay much higher interest on any loan or credit you obtain.

This article hopefully accomplishes two things: first, you need to know that you can probably handle your own credit repair just as effectively as a credit repair organization.  Second, it may be impossible to completely clean your credit report no matter what anyone tells you.  Third, if you do hire a credit repair organization, please be sure that it is not doing anything to make your credit worse with underhanded tactics and approaches that the credit bureaus hate.

Common Myths About Credit Repair

It’s good to start with some common myths to clear these up.

  1. Myth: you can get any bad credit mark off of your credit report. Fact: if you really do owe the debt and you really were late, in default or in bankruptcy, then it’s likely that the bad mark will stay on your credit report even if you hire a credit repair organization.  I hear advertisements where some credit repair organization promise to completely cleanse your credit report of all negative information.  This is simply not possible.  If a bank or a creditor verifies false information after you dispute it, it will most likely remain on your credit report.
  2. Myth: credit repair organizations have “secret techniques” to cleanse your credit that no one else knows. Fact: this is false.  Some credit repair organizations utilize underhanded tactics which may cleanse your credit for a short time, but once the negative information comes back onto your credit report, it’s there to stay.  Don’t believe any credit repair guy who claims to have some insider secret.  Everything you need to know about legitimate credit repair can be found at the Federal Trade Commission website or at various places on my website, brennanlaw.com.
  3. Myth: if you cannot obtain good credit, you need to go to a credit repair organization. Fact: you probably do not need to go to a credit repair organization.  Some real estate agents will want you to go to a credit repair organization if you are in the middle of a real estate loan and you need a very quick repair on some aspect of your credit report.  When this happens, go ahead and follow the recommendation of your real estate agent.  The one bit of value that a legitimate credit repair organization can offer is cleansing your credit perhaps a little faster than you can, because a legitimate organization will have cultivated some contacts at the credit bureaus and also at some major banks.  However, if you regularly review your credit report (you should, at least once or twice a year for each of the three major bureaus) and you find negative information you want to remove or clarify, if you are not in a big hurry then do it yourself.  I will tell you how in this article.

 

How Bad Credit Repair Organizations Try to Repair Your Credit—and End Up Hurting You

Bad credit repair organizations have a couple of phony strategies which end up hurting you, more often than not.  One is to take a “shotgun” approach, and dispute each and every item on your credit report, whether or not it’s a valid debt.  This approach attempts to take advantage of the law which requires credit bureaus (Experian, Equifax and TransUnion) to process disputes within 30 days of receipt.  By overwhelming the dispute agents at the bureaus, the bad organizations attempt to push the disputes past the 30-day limit, and then the bad credit remarks will be removed, along with the entire tradeline.

The problem with this approach is that the bureaus have the legal ability to mark you, or the credit repair organization you hire, as a “frivolous disputant,” and thereafter will ignore all of your disputes, even if valid.  Further, if this strategy works, it is often for the short term only: once the furnisher or the credit bureau realizes that the bad mark has fallen off your credit report because of the 30-day limit, the bad mark will often be re-reported, if it was valid.  So, it may come off of your credit report for 3 months or so, then come right back on again.

Another thing bad credit repair organizations do is to mark all of your negative tradelines as “not mine.”  This is more or less the easiest dispute to make.  It can cause some problems for some furnishers of information, as it is a very broad and non-specific dispute, but again, even if it works in the short term to remove negative information, that probably won’t last.  Further, disputing a tradeline as “not mine” when in fact it is subjects you to being labeled a frivolous disputant.

 

How to Handle Your Own Credit Report Disputes

It’s pretty easy and you do not need the assistance of a credit repair organization.

First, remember to use old-fashioned letters.  Disputing over the phone leaves you with no record of the dispute or how you expressed it.  Similarly, disputing online gives the credit bureau all of the information but leaves you with none.  You absolutely want to keep a record of your dispute, and it’s best to use “snail-mail” and certified mail to send it to the bureaus, so you will have a record of the dispute.

The addresses for sending disputes to the bureaus are given on their websites, and can also be found at www.ftc.gov.  This is the Federal Trade Commission website.  You can also google “addresses for sending credit report disputes.”  I just did this and obtained the following addresses:

Here are the mailing addresses for each credit bureau:

  • Equifax. P.O. Box 7404256. Atlanta, GA 30374-0256.
  • Experian. Dispute Department. P.O. Box 9701. Allen, TX 75013.
  • TransUnion. Consumer Solutions. P.O. Box 2000. Chester, PA 19022-2000.

 

You must dispute with the credit bureaus to invoke the federal Fair Credit Reporting Act, which is the law you would most likely use to sue credit bureaus or banks for false credit reporting.  So, send your disputes to the bureaus who are reporting any false, inaccurate or unverifiable information, and cc the bank, creditor or debt collector that is furnishing the bureaus with the false information.  The bureaus have 30 days to investigate the dispute, and can respond by removing the tradeline, modifying it or letting it continue to report.

What I have just described is what most or all of the credit repair organizations do for you.  You can do it at no cost (other than postage) and it doesn’t take that much time.

If indeed you have false, inaccurate or unverifiable information on your credit report and you cannot get it removed with the disputing process, then you need to see an attorney who specializes in litigation under the Fair Credit Reporting Act.  My firm is such a firm, and we would love to review your possible case free of charge.

 

Copyright © 2019 by Robert F. Brennan, Esq.  All right reserved.

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EXPERIAN “DARK WEB” SCAN—IS IT WORTH IT?

On Super Bowl Sunday, Experian will afflict you with more commercials for its “dark web” scan.  I have received a number of emails from clients and colleagues asking whether it’s worth it.

My answer is: probably not.  Reason: if Experian finds your name or identifying information on some nefarious website in the “dark web,” Experian’s advice to you will be to change your passwords, use stronger passwords and put security alerts or a credit freeze on your credit bureau accounts.  However, you can do all of that without paying Experian for a “dark web” scan.

First things first: what is the “dark web”?  I do not hold myself out as an expert, but I have done some research on this.  The “dark web” is a subset of the “deep web”.  The “deep web” consists of websites that will not respond to searches from traditional search engines, like Google, Bing or Yahoo.  If you search, for instance, “Super Bowl” on any of the traditional search engines, you would get websites from what is traditionally thought of as “the clear web”.  You would not get any hits for websites in the “deep web”.

The “deep web” consists mostly of legitimate websites, such as legal members-only websites or proprietary company websites, such as in internal website used by a large corporation.  In general, these websites tend to be more private in nature.  By some estimates, the “deep web” consists of over 90% of the overall internet.

The “dark web” is that portion of the “deep web” in which illegal activity occurs, such as drug or illegal currency trafficking, child pornography or hiring hit men (no joke).  There are websites on the “dark web” which traffic in stolen identities.

To access a “dark web” website, you normally would need a dark web browser (TOR is probably the most well-known one) and you would only browse using a VPN—virtual private network, which essentially disguises your identity, your computer credentials and your location while you are browsing.  Really, anyone can do this—it’s not difficult to get onto the “dark web”.  However, be forewarned: law enforcement agencies around the world have lots of tricky ways of monitoring people browsing the “dark web,” even if you take steps to do it anonymously.  So fooling around on the “dark web” is not recommended—one false step and you can easily put yourself in the crosshairs of a law enforcement agency.

Now, back to the topic at hand: the Experian “dark web” scan. 

First, understand that the “dark web” is only one avenue of selling a stolen identity, and probably not a very significant one.  If someone steals your identity, chances are they already have a willing buyer somewhere and there would be no need to post it for sale on the “dark web”.

Second, while I have no doubt that Experian knows about several locations for stolen identities on the “dark web,” I strongly doubt it knows about all of them.  More than any other area of illegal activity, the internet is a place where the criminals are ALWAYS one or more steps ahead of the people trying to catch them.  So, while Experian can conduct a “dark web” scan, I strongly doubt that it would be a complete or comprehensive scan.  What percentage of the “dark web” can Experian access?  I don’t know, but it’s probably not a whole lot more than any private investigator with good computer knowledge can access.  And, I strongly doubt Experian’s “dark web” access is equal to the access which has been achieved by various law enforcement agencies.

Finally, as I mention above: if Experian finds your name or identifying information on the “dark web,” Experian will tell you to change your passwords, use stronger passwords and possibly put a credit freeze or security alerts on your credit profiles with the three major bureaus.  You can do that without paying Experian for the “dark web” scan.

But hey, if you want to hire Experian to do a “dark web” scan, I would be very interested in hearing the results.

I hope this short article has been useful to you.  Thanks for reading.

Bob Brennan

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Experian Boost Wants to Help Raise Your Credit Score, But…

EXPERIAN WANTS TO HELP YOU RAISE YOUR CREDIT SCORE…but there’s a catch: you have to permit Experian to view and monitor your personal bank accounts. Experian’s new product, Experian Boost, says it can raise credit scores for subprime consumers by taking into account regular payments on rent, phone and utility bills. But here’s the catch: Experian will contract with Finicity, which will then have electronic access to your bank accounts.

Hey, devil’s bargain, right? If your credit score is low and you need to raise it, yes, you might benefit from this program. Your personal banking information is the “holy grail” of the corporate you-really-have-no-privacy crowd. So, when you inherit, when someone repays a loan to you, when you sell your old beater car and deposit the money into one of your bank accounts…Experian now will have access to that information and, yes, will sell it to willing buyers, including debt collectors and telemarketers.

So, you choose what’s right for you. I thought you at least should have this warning.

Equifax is rolling out a similar product in 2019

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Robert F. Brennan Discusses His Relationship With His Uncle, US Supreme Court Justice William J. Brennan, Jr.

 

Originally Published By Super Lawyers (Read Full Article Here)

U.S. Supreme Court Justice William J. Brennan Jr. was dubbed “probably the most influential” justice of the last century by no less an authority than fellow justice, and political foe, Antonin Scalia.

But to Bob Brennan he was Uncle Bill.

“He was just the smartest guy in the room,” recalls Brennan, who practices consumer rights law in La Crescenta. “It was like he was the sun and the planets were revolving around him. … The man just had an incredible presence.”

Justice Brennan had seven siblings, including one who died in World War II, and all were highly accomplished, Brennan says. “But obviously, the all-star here was my uncle.”

Bob’s father, Frank Brennan, general counsel for E.&J. Gallo Winery for many years, tried to steer his son toward the law, but Bob resisted. Instead, after majoring in English, he worked in San Francisco as a paralegal and a comedy writer.

“This is circa 1982-1983, so I’m sure that a lot of my jokes had to do with Ronald Reagan.” Eventually, economic reality—and long talks with his father—redirected Brennan to law school, where he was in for a surprise.

“I found out that I really enjoyed practicing law,” he says. “I had a skill set that was well-suited.”

Litigation, in particular, interested him, but an incident inspired him to narrow his focus. While working as a summer associate, Brennan rented a room that already had an occupant. Brennan notified the landlord, canceled and moved out. Two years later, he discovered the landlord put negative information on his credit report.

“It made me upset, and piqued my interest in credit reporting cases,” he says. “I started doing lemon law. Then I started Fair Credit Reporting Act cases … consumer financial- and consumer goods-type cases. I have been doing that for over 20 years.”

Brennan has just finished trying a case for a client who had his identity stolen by a man who bought three cars using his victim’s credit. The client struggled to clear his name and managed to do so with all but one creditor—BMW Financial. Brennan landed a Fair Credit Reporting Act and identity theft verdict of $430,000. In addition to that, the judge awarded attorney’s fees of approximately $280,000.

“The one thing I think I see on a regular basis that other people don’t see is the effect that some of these consumer-abuse situations can have on individuals,” Brennan says. “It can be really, really devastating.”

His uncle, who passed away in 1997, would no doubt have approved. The year before Justice Brennan’s death, his nephew attended his 90th birthday party.

“I got to meet 20 to 30 of his clerks,” Brennan recalls. “Everyone referred to him as Yoda: this little guy who had more wisdom and power than anyone else on the planet. They all talked about how much fun it was to work with him, how decent a human being he was.”

Brennan was known for getting along with everyone—with one notable exception. “My uncle had his differences with Justice [Warren E.] Burger,” says Brennan. “Dick Nixon wanted to get rid of William J. Brennan, and so Justice Burger became the person assigned to giving Justice Brennan assignments that would interfere with his life.”

Brennan’s first wife, Marjorie, was in the hospital with cancer, for example, ”and my uncle wanted to visit her as often as possible. Chief Justice Burger got wind of that, and he would continuously give my uncle assignments that would interfere with my uncle’s free ability to [do so]. … This is probably coming from Nixon—that Burger was trying to pressure my Uncle Bill to resign—but my Uncle Bill refused. He took on whatever additional assignments he was getting.”

That was the anomaly, though. “In terms of the modern political and judicial landscape where judges are disagreeing with each other all the time,” Brennan says, “Justice Brennan literally stands alone.”

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