Complaint 1/21
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A complaint with jury demand filed April 11, 2024 as Document 1 in Jack Dempsay v. LexisNexis Risk Solutions, Inc., Case No. 5:24-cv-00176, in the U.S. District Court for the Middle District of Florida, Ocala Division. The complaint brings claims under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., alleging that the defendant reported to the plaintiff's potential creditors that he is "deceased" and failed to follow reasonable procedures under 15 U.S.C. § 1681e(b). It describes the defendant's practices for placing deceased notations, the Social Security Administration's Death Master File and the Limited Access Death Master File. It seeks actual, statutory and punitive damages under 15 U.S.C. § 1681n or § 1681o, plus fees and costs. The 21-page complaint is signed by Catherine Tillman of Consumer Attorneys.
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Case 5:24-cv-00176-JSM-PRL Document 1 Filed 04/11/24 Page 1 of 21 PageID 1
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JACK DEMPSAY, Case No.: 5:24-cv-00176
Plaintiff,
v.
JURY TRIAL DEMANDED
LEXISNEXIS RISK SOLUTIONS,
INC.,
Defendant.
COMPLAINT
Jack Dempsay (Plaintiff” or “Mr. Dempsay”) a living, breathing 79-year-old
consumer, brings this action on an individual basis, against LexisNexis Risk
Solutions, Inc. (“LexisNexis” or “Defendant”) and states as follows:
INTRODUCTION
1. The computerization of our society has resulted in a revolutionary
increase in the accumulation and processing of data concerning individual American
consumers. Data technology, whether it is used by businesses, banks, the Internal
Revenue Service or other institutions, allows information concerning individual
consumers to flow instantaneously to requesting parties. Such timely information is
intended to lead to faster and better decision-making by its recipients and, in theory,
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all of society should ultimately benefit from the resulting convenience and
efficiency.
2. However, unfortunately this information has also become readily
available for, and subject to, mishandling and misuse. Individual consumers can and
do sustain substantial damage, both economically and emotionally, whenever
inaccurate or fraudulent information is disseminated and/or obtained about them. In
fact, Defendant acknowledges this potential for misuse and resulting damage every
time it sells its respective services to a consumer.
3. The ongoing technological advances in the area of data processing have
resulted in a boon for the companies that accumulate and sell data concerning
individuals' credit histories and other personal information. Such companies are
commonly known as consumer reporting agencies ("CRAs").
4. These CRAs sell information to readily paying subscribers (i.e.,
retailers, landlords, lenders, potential employers, and other similar interested
parties), commonly called "consumer reports," concerning individuals who may be
applying for retail credit, housing, employment, or a car or mortgage loan.
5. Since 1970, when Congress enacted the Fair Credit Reporting Act, 15
U.S.C. § 1681, et seq. ("FCRA"), federal law has required CRAs to implement and
utilize reasonable procedures "to assure maximum possible accuracy" of the
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personal, private, and financial information that they compile and sell about
individual consumers.
6. One of the primary purposes in requiring CRAs to assure "maximum
possible accuracy" of consumer information is to ensure the stability of our banking
system:
The banking system is dependent upon fair and accurate credit
reporting. Inaccurate credit reports directly impair the efficiency of the
banking system, and unfair credit reporting methods undermine the
public confidence which is essential to the continued functioning of the
banking system.
See 15 U.S.C. § 1681(a)(1).
7. The preservation of one's good name and reputation is also at the heart
of the FCRA's purposes:
[W]ith the trend toward computerization of billings and the
establishment of all sorts of computerized data banks, the individual is
in great danger of having his life and character reduced to impersonal
"blips" and key-punch holes in a stolid and unthinking machine which
can literally ruin his reputation without cause, and make him
unemployable or uninsurable, as well as deny him the opportunity to
obtain a mortgage or buy a home. We are not nearly as much concerned
over the possible mistaken turn-down of a consumer for a luxury item
as we are over the possible destruction of his good name without his
knowledge and without reason. Shakespeare said, the loss of one's good
name is beyond price and makes one poor indeed.
Bryant v. TRW, Inc., 689 F.2d 72, 79 (6th Cir. 1982) [quoting 116 cong. Rec.
36570 (1970)] (emphasis added).
8. The FCRA also requires CRAs to conduct a reasonable reinvestigation
to determine whether information disputed by consumers is inaccurate and record
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the current status of the disputed information, or delete the disputed information,
before the end of the 30-day period beginning on the date on which the CRA receives
the notice of dispute from the consumer. This mandate exists to ensure that consumer
disputes are handled in a timely manner and that inaccurate information contained
within a consumer's credit report is corrected and/or deleted so as to not prevent said
consumer from benefiting from his or her credit and obtaining new credit.
9. In light of these important findings and purposes, Congress specifically
noted "a need to insure that [CRAs] exercise their grave responsibilities with
fairness, impartiality, and respect for the consumer's right to privacy." See 15 U. S.C.
§ 1681(a)(4).
10. The FCRA also requires furnishers of information, a creditor or other
third party that provides information about consumer to a CRA, upon notice, to
conduct a reasonable reinvestigation of all disputes with regard to the completeness
or accuracy of any information it provides to the CRAs regarding a consumer and
modify, delete, or permanently block any items of information found to be
inaccurate, incomplete, or unverifiable after said reinvestigation is completed.
11. Plaintiff’s claims arise out of Defendant's blatantly inaccurate
reporting, wherein Defendant reported to Plaintiff’s potential creditors that he is
"deceased."
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12. Accordingly, Plaintiff brings claims against Defendant for failing to
follow reasonable procedures to assure the maximum possible accuracy of Plaintiff’s
credit reports, in violation of the FCRA, 15 U.S.C. § 1681e(b).
13. As part of this action, Plaintiff seeks actual, statutory, and punitive
damages, costs and attorneys' fees from Defendant for its willful and/or negligent
violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., as described
herein.
PARTIES
14. Jack Dempsay (“Plaintiff” or “Mr. Dempsay”) is a natural person
residing in Sumter County, Florida, and is a “consumer” as that term is defined in
15 U.S.C. § 1681a(c).
15. Defendant LexisNexis Risk Solutions, Inc. ("Defendant" or
"LexisNexis") is a Delaware corporation doing business throughout the United
States, including the State of Minnesota and in this District, and has a principal place
of business located at 1000 Alderman Drive, Alpharetta, Georgia 30005. LexisNexis
can be served at its registered agent, CT Corporation System, located at 1200 South
Pine Island Road, Plantation, FL 33324.
16. LexisNexis is a "consumer reporting agency" as defined in 15 U.S.C. §
1681a(f). LexisNexis is regularly engaged in the business of assembling, evaluating,
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and disseminating information concerning consumers for the purpose of furnishing
consumer reports, as defined in 15 U.S.C. § 1681a(d) to third parties.
JURISDICTION AND VENUE
17. This Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C.
§ 1331 and 15 U.S.C. § 1681p, which allows claims under the FCRA to be brought
in any appropriate court of competent jurisdiction.
18. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2)
because a substantial part of the events or omissions giving rise to Plaintiff's claims
occurred in this District.
FACTS
Summary of the Fair Credit Reporting Act
19. The FCRA governs the conduct of consumer reporting agencies in an
effort to preserve the integrity of the consumer banking system and to protect the
rights of consumers to fairness and accuracy in the reporting of their credit
information.
20. The FCRA was designed to protect consumers from the harmful effects
of inaccurate information reported in consumer reports (commonly referred to as
“credit reports”). Thus, Congress enshrined the principles of “fair and accurate credit
reporting” and the “need to ensure that consumer reporting agencies exercise their
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grave responsibilities with fairness” in the very first provision of the FCRA. See 15
U.S.C. § 1681(a).
21. Specifically, the statute was intended to ensure that “consumer
reporting agencies adopt reasonable procedures for meeting the needs of commerce
for consumer credit, personnel, insurance, and other information in a manner which
is fair and equitable to the consumer, with regard to the confidentiality, accuracy,
relevancy, and proper utilization of such information. See 15 U.S.C. § 1681(b).
22. To that end, the FCRA imposes the following twin duties on consumer
reporting agencies: (i) consumer reporting agencies must devise and implement
reasonable procedures to ensure the “maximum possible accuracy” of information
contained in consumer reports (15 U.S.C. § 1681e(b)); and (ii) consumer reporting
agencies must reinvestigate the facts and circumstances surrounding a consumer’s
dispute and timely correct any inaccuracies (15 U.S.C. § 1681i).
23. The FCRA provides consumers with a private right of action against
consumer reporting agencies that willfully or negligently fail to comply with their
statutory obligations under the FCRA.
Defendant’s Practices Concerning the Sale of Reports on the “Deceased”
24. Defendant sells millions of consumer reports (often called "credit
reports" or "reports") per day.
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25. Pursuant to 15 U.S.C. § 1681e(b), consumer reporting agencies, like
Defendant, are required "to follow reasonable procedures to assure maximum
possible accuracy of the information concerning the individual about whom the
report relates."
26. Pursuant to 15 U.S.C. §§ 1681b and 1681e(a), consumer reporting
agencies, like Defendant, must maintain reasonable procedures to assure that
consumer reports are sold only for legitimate "permissible purposes."
27. Defendant routinely places a "deceased" notation or marking on reports
when it is advised by any of its many data sources that a given consumer is deceased.
28. Defendant 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 in that consumer's credit file.
29. Defendant does not request or require any proof from any data source
which advises that a consumer is "deceased," showing that the consumer is in fact
deceased before placing a "deceased" mark on that consumer's report.
30. Defendant does not independently verify with any source that a
consumer is in fact deceased before placing a "deceased" mark on that consumer's
report.
31. In some cases, in order to assure accuracy, Defendant may send letters
and/or other communications to consumers when certain information that may be
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considered suspicious or unreliable is furnished about said consumers to be placed
in their credit files, 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 Florida. Defendant does not have any procedure to notify consumers (such
as a next of kin or executor or administrator of the consumer's estate) when
Defendant has received information suggesting the consumer is deceased before
adding that information to the consumer’s credit file or report.
32. The Social Security Administration (SSA) maintains the Death Master
File (“DMF”). The DMF is also known commercially as the Social Security Death
Index (SSDI). The SSA’s DMF as of 2018 contained information on 111 million
deaths that have been reported to the SSA. The DMF is created from internal SSA
records of deceased persons possessing social security numbers and whose deaths
were reported to the SSA. The DMF includes the following information on each
decedent, if the data are available to the SSA: social security number, name, date of
birth, and date of death.
33. Legislation (i.e., the Social Security Act) precludes the sharing of the
full DMF with non-benefits paying agencies.
34. Because of the wide use and demand for death records for a variety of
industries, SSA has partnered with the U.S. Department of Commerce’s National
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Technical Information Service (NTIS) to release the Limited Access Death Master
File (LADMF) electronically on a weekly and monthly basis.
35. The SSA receives death reports from many sources, including family
members, funeral homes, financial institutions, postal authorities, state information,
and other federal agencies. The SSA does not have a death record for all persons;
therefore, the SSA does not guarantee the veracity of the DMF. The SSA does not
guarantee 100% of the data.
36. The SSA estimates that roughly 12,000 living people are added to the
DMF annually, potentially due to clerical error. An erroneous listing can lead to not
only a cessation of government benefits, but also the freezing of bank accounts, the
inability to buy or rent property, and mistaken accusations of identity theft.1 2
37. The Office of the Inspector General called the error rate “very low,” but
noted that “SSA’s erroneous death entries can lead to mistaken benefit terminations
and cause severe financial hardship and distress to affected people…when errors like
this occur, it can be a long and difficult process to resurrect your financial health.3
38. Defendant does not have access to the full DMF from the SSA, but
rather is a subscriber to the NTIS LADMF.
1
Aviva Dekornfeld (2018-06-20). "The Plight of the Living Dead". The Indicator from Planet Money (Podcast).
2
Bichell, Rae Ellen (2016-08-10). "Social Security Data Errors Can Turn People into the Living Dead". National
Public Radio.
3
"Cases of Mistaken Death Reports Low but Costly | Office of the Inspector General, SSA". oig.ssa.gov. 2016-
03-24. Archived from the original on 2020-07-16.
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39. Despite being a subscriber to the NTIS LADMF, Defendant does not
cross-reference the information it has received suggesting a consumer is deceased
with the LADMF in order to determine whether any given consumer reported as
deceased via its source is also on the LADMF before selling a credit report about
said consumer, or at any time.
40. Defendant fails to employ reasonable procedures that assure that a
consumer is actually deceased before placing the "deceased" mark on that
consumer's report and selling that report for profit.
41. Even in instances where other data on the face of the consumer's report
indicates that he/she is not deceased, Defendant does not employ any procedures to
assure that a consumer is in fact actually deceased before placing the "deceased"
mark in that consumer's file.
42. Even in instances where the purportedly deceased consumer
communicates directly with the Defendant, Defendant does not employ any
procedures to assure that a consumer is in fact actually deceased before placing the
"deceased" mark on that consumer's report.
43. Defendant knows that living consumers are routinely turned down for
credit specifically because they are reporting them as "deceased."
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44. Defendant has been put on notice for years through consumer disputes
and lawsuits that living, breathing consumers are turned down for credit specifically
because Defendant is inaccurately reporting them as "deceased."
45. Defendant has received and documented many disputes from
consumers complaining that Defendant had erroneously marked them as "deceased”
on their credit reports.
46. Defendant knows that thousands of consumers are erroneously marked
as "deceased" on their credit reports.
47. Nevertheless, Defendant does not employ any procedures to assure that
a consumer is actually deceased before adding a “deceased” notation to that
consumers credit reports.
48. Defendant does not employ any procedures to limit or stop the
furnishing of reports to third parties for consumers that they have marked as
"deceased" under any circumstances.
49. For years after a consumer's actual death, Defendant will continue to
sell credit reports about that consumer.
50. Defendant will only remove a deceased consumer's file from its
respective credit reporting databases when it is no longer valuable to them—
meaning that no one is continuing to purchase reports about that consumer.
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51. Defendant 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.
52. Defendant profits from the sale of reports on deceased consumers.
53. Defendant knows that truly deceased consumers do not apply for credit.
54. Defendant 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 Defendant to be a common and major source of identity theft.
55. Defendant knows that identity theft and credit fraud are serious and
widespread problems in our society.
56. Defendant sells reports on supposedly deceased consumers 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.
57. For consumers who are deceased, there rarely, if ever, exists a
permissible purpose under the FCRA for the Defendant to sell their credit reports,
absent a court order.
58. Defendant knows that such reports contain a vast amount of personal
identifying and credit account information on the supposedly deceased consumer,
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information that can be used to commit identity theft or for other fraudulent
purposes.
Plaintiff’s Need for Surgery
59. On or about September 18, 2023, Plaintiff had an accident and broke
two of his teeth.
60. Accordingly, Plaintiff went to Sumter Landing Dental Care PLLC
(“Sumter Dental”), a very reputable dental surgeon in Plaintiff’s local area.
61. The dental surgeon advised Plaintiff that he would need to get the roots
for the missing teeth removed before obtaining a bridge and/or other teeth
replacements.
62. Plaintiff was in an extensive amount of pain and was consequently
forced to go on a liquid food diet in order to avoid the pain associated with eating
solid foods in his condition. Plaintiff’s cost of the liquid food diet is approximately
$50.00 a week.
Plaintiff Applied for Credit with CareCredit to Help Pay for his Oral Surgery
63. On or about October 15, 2023, Plaintiff applied for credit with
CareCredit, which is serviced by Synchrony Bank (“Synchrony”).
64. CareCredit offers consumers financing options with payment plans at
no interest for a set period.
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65. Plaintiff’s total out-of-pocket expenses for his desperately needed oral
surgery with Sumter Dental would be $16,000.00 and Plaintiff was relying heavily
on the financial assistance from CareCredit to help pay for such a medical expense.
Synchrony Denies Plaintiff’s Credit Application to CareCredit
66. Synchrony ordered a consumer report about Plaintiff from Defendant
on or about October 15, 2023.
67. Shortly thereafter, on or about October 15, 2023, Defendant published
information on a report about Plaintiff to Synchrony with regards to Plaintiff’s credit
application.
68. Defendant provided Synchrony with a report about Plaintiff wherein
Defendant stated that Plaintiff was deceased, and upon receipt and review of such
report, Synchrony denied Plaintiff’s credit card application.
69. Synchrony specifically stated in its denial letter that “Your request was
denied” because “Credit bureau reports applicant as deceased,” and further listed
Defendant as the source of such report.
70. Plaintiff was extremely saddened and frustrated by Synchrony’s
CareCredit denial. Certainly, Plaintiff was not deceased. Plaintiff found such
information to be very distressing and confusing, even shocking. Plaintiff felt
helpless and did not know what to do so he sought other avenues to get the surgery
that he needed.
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Plaintiff Found a Dentist Covered by his Insurance to Perform the Oral
Surgery
71. Several months later, after a painful and strenuous search for a dentist
that would perform the surgery through Plaintiff’s United Healthcare insurance,
Plaintiff was able to complete the surgery with Dr. Sulaiman Alshaar at Aspen
Dental on January 30, 2024.
72. Plaintiff’s out-of-pocket costs for the surgery with Aspen Dental was
approximately $105.00.
73. Unfortunately, the dentist at Aspen Dental blundered the surgery and,
instead of removing the problematic roots, removed two other teeth from Plaintiff’s
mouth.
74. Plaintiff reasonably believes that such malpractice would not have
occurred had he done his surgery with Sumter Dental.
75. As of the date hereof, Plaintiff remains on his insufferable restrictive
liquid diet, continues to be in pain from his oral infection and has yet to obtain the
medical care that he desperately needs to have a normal functioning life.
76. On multiple occasions Plaintiff attempted to retain a different dental
surgeon to correct the surgery, but was unsuccessful because the dental surgeons
were not willing to perform the surgery. Upon information and belief, the dental
surgeons were worried that they may be implicated in any potential lawsuit for
malpractice.
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Plaintiff Obtains His Consumer Report from Experian and Trans Union and
Continued to Receive Social Security Assistance (“SSA”) Benefits
77. In or about January 29, 2023, Plaintiff obtained his consumer report
from Experian and Trans Union.
78. Upon review, there was no indication that Experian or Trans Union
were reporting Plaintiff as deceased.
79. In addition, since the accident, and through the date hereof, Plaintiff has
not had any issues and continues to receive his SSA benefits.
80. Plaintiff also had active tradeline accounts in or around October 2023,
which Plaintiff continued to make timely payments on.
81. Defendant violated 15 U.S.C. § 1681e(b) by failing to establish or to
follow reasonable procedures to assure maximum possible accuracy of the consumer
information it published and maintained concerning Plaintiff.
82. As a result of the inaccurate and egregious deceased notation,
Defendant made it practically impossible for Plaintiff to obtain the credit needed to
pay for proper oral surgery performed by a competent dentist.
83. At all times pertinent hereto, Defendant was acting by and through its
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
Defendant herein.
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84. At all times pertinent hereto, the conduct of Defendant, as well as that
of its respective agents, servants, and/or employees, was intentional, willful,
reckless, grossly negligent and in utter disregard for federal law and the rights of
Plaintiff herein.
85. Defendant is aware of the shortcomings of its procedures and
intentionally chooses not to comply with the FCRA to lower its costs. Accordingly,
the Defendant’s violations of the FCRA are willful.
86. As a result of Defendant’s conduct, action, and inaction, Plaintiff
suffered damage by loss of credit; loss of ability to purchase and benefit from his
good credit rating; detriment to his credit rating; pain and suffering due to his
inability to purchase and/or obtain proper medical care; severe weight loss due to his
dietary restrictions; the cost of the maintaining the liquid food diet; and emotional
distress including: (i) the mental and emotional pain anguish, humiliation and
embarrassment of missing teeth and having a restrictive liquid diet for several
months since Plaintiff’s accident, and (ii) the mental and emotional pain, anguish,
humiliation, and embarrassment of credit denials.
CLAIMS FOR RELIEF
COUNT I
15 U.S.C. § 1681e(b)
Failure to Follow Reasonable Procedures to Assure Maximum Possible
Accuracy
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87. Plaintiff re-alleges and incorporates by reference the allegations set
forth in preceding paragraphs as if fully stated herein.
88. The FCRA imposes a duty on consumer reporting agencies to devise
and implement procedures to ensure the “maximum possible accuracy” of consumer
reports, as follows:
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) (emphasis added).
89. On numerous occasions, Defendant prepared patently false consumer
reports concerning Plaintiff.
90. Despite actual and implied knowledge that Plaintiff is not dead,
Defendant readily sold such false reports to one or more third parties, thereby
misrepresenting Plaintiff, and ultimately Plaintiff’s creditworthiness.
91. Defendant violated 15 U.S.C. § 1681e(b) by failing to establish or to
follow reasonable procedures to assure maximum possible accuracy in the
preparation of the consumer reports it published and maintained concerning
Plaintiff.
92. As a result of Defendant’s conduct, action, and inaction, Plaintiff
suffered damage by loss of credit; loss of ability to purchase and benefit from his
good credit rating; detriment to his credit rating; pain and suffering due to his
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inability to purchase and/or obtain proper medical care; severe weight loss due to his
dietary restrictions; the cost of maintaining the liquid food diet; and emotional
distress including: (i) the mental and emotional pain anguish, humiliation and
embarrassment of missing teeth and having a restrictive liquid diet for several
months since Plaintiff’s accident, and (ii) the mental and emotional pain, anguish,
humiliation, and embarrassment of credit denials.
93. Defendant’s conduct, actions, and inactions were willful, rendering it
liable for actual or statutory damages, and punitive damages in an amount to be
determined by the Court pursuant to 15 U.S.C. § 1681n. Alternatively, they were
negligent, entitling Plaintiff to recover under 15 U.S.C. § 1681o.
94. Plaintiff is entitled to recover attorneys’ fees and costs from Defendant
in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n and/or §
1681o.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for the following relief:
i. Determining that Defendant negligently and/or willfully violated the FCRA;
ii. Awarding Plaintiff actual, statutory, and punitive damages as provided by the
FCRA;
iii. Awarding Plaintiff reasonable attorneys’ fees and costs as provided by the
FCRA; and,
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iv. Granting further relief, in law or equity, as this Court may deem appropriate
and just.
DEMAND FOR JURY TRIAL
Plaintiff is entitled to and hereby demands a trial by jury on all issues so
triable.
RESPECTFULLY SUBMITTED this 11th day of April 2024
CONSUMER ATTORNEYS
/s/ Catherine Tillman
Catherine Tillman, Esq., FL #0057663
CONSUMER ATTORNEYS
8245 N. 85th Way
Scottsdale, AZ 85258
T: (941) 263-7310
F: (718) 715-1750
E: ctillman@consumerattorneys.com
Attorneys for Plaintiff,
Jack Dempsay
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