Legal Question in Personal Injury in California

As a Mortgage Broker, in order to become approved to do business with most wholesale lenders, I am required to pay $79 and apply through a company which collects and reviews my financials and lender documentation. Today I received a decline notice from a lender with whom I had applied, which was based solely on a printout provided to them by the company. The individual simply shared my first and last name and had a pending Federal criminal case against him for drug sales in a county located 7 hours from my location. This is not me and I called the company and was told that I would have to drive 7 hours to the US Court in order to have them provide me with documentation to show that the individual is not me. I am not going to drive 7 hours for a job that they needed to provide for a service that they charged me for. They didn't use my social security number, address or anything else related to me. I asked to speak to a Manager and after 10 minutes on hold their representative told me that there wasn't a Manager available but they would call me back. They did not which added to me being livid. They were negligent for breaching their duty of care in providing the lender with carefully obtained information. I would like to report them to the AG and Dept. of Consumer Affairs and possibly the County DA in which they conduct business. I would like your feedback on my remedies available at law.


Asked on 10/07/12, 12:25 am

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

You call this a negligence case, but it is much more likely a contract case instead. Whether anybody breached a contract will depend upon what the contracts say and who the parties are. I can't offer much guidance without that information.

Even if this is a negligence case, I can't say whether the company actually was negligent. If the incomplete information was the best it could readily obtain and then the lender made a mistaken inference from that information, that would be hard to blame on the company. It does not sound like the company caused the information to be incomplete, and I don't see why they would have a duty to investigate and fill in the blanks. Perhaps your contract with them imposes such a duty -- but if it does that would be reason to consider this a contract case and not one of negligence.

(You can sue under both theories and figure out later which one makes more sense. But you should get a lawyer to represent you and decide what causes of action to pursue. At a minimum you should consult with a lawyer beforehand and see if she can figure it out.)

Reporting this to the A.G. might not accomplish much. The A.G.'s office largely deals with criminal appeals, habeas petitions, and civil lawsuits to which the state is a party. It does have a large consumer protection division, but that division mostly deals with actual crimes against consumers. I see no reason to believe the company committed a crime based upon your limited information. And it's not clear whether you would qualify as a consumer in this context. (Disputes between businesses are not consumer disputes, and that may be the kind of dispute you're describing.)

Reporting to the consumer affairs department presents the same question about your status as a consumer. And the county D.A. will only be interested if the company committed a crime. As I mentioned earlier, I see no evidence that this happened.

Finally, even if the company really needs you to provide documents from a distant courthouse, it does not follow that you must drive there yourself. You should be able to order the materials from home. They may even be available online. Call the clerk's office, explain what you need and ask how you can get it.

Good luck.

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Answered on 10/08/12, 12:03 am


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