In Hammer v. Equifax Info. Servs., No. 19-10199, 2020 U.S. App. LEXIS 28800 (5th Cir. Sep. 9, 2020), the Court of Appeals for the Fifth Circuit held that no claim arose under the FCRA for failure to report a trade line in the consumer’s consumer report.
Hammer alleges that Equifax violated the FCRA because it had favorable information about his Capital One card, omitted it from his credit report, and thereby harmed his creditworthiness. In his view, a credit report is inaccurate under § 1681e(b) if a CRA (1) has verified information on the consumer, (2) omits that information from the report, and (3) that omission harms the consumer’s credit. [*5] Our case law does not support this reading of § 1681e(b). A credit report does not become inaccurate whenever there is an omission, but only when an omission renders the report “misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions.”11 For example, in Sepulvado v. CSC Credit Services, Inc., a credit report stated that an entry had been “assigned” in 1994, but failed to state that the obligation arose six years earlier.12 The consumer argued that this omission rendered the report incomplete and thus inaccurate. We held that the “report may have been incomplete, but it was not . . . facially misleading or inaccurate when prepared” because an “assigned” obligation must have existed before the assignment.13 The Court “decline[d], at least in [that] case, to construe § 1681e(b) in a way that would require completeness without regard to whether the disputed entry was misleading.”For that reason, the omission of a single credit item does not render a report “inaccurate” or “misleading.” Businesses relying on credit reports have no reason to believe that a credit report reflects all relevant information on a consumer. Indeed, such a requirement would be impossible for a CRA to satisfy, as creditors furnish CRAs with consumer information only on a voluntary basis.16 Hammer has not alleged, for example, that the CRAs violated their stated disclosure policies or maintained an undisclosed policy of deleting certain favorable items. And Hammer’s case is not one that is “truly extraordinary.”18 As a result, his § 1681e(b) claim fails. . . . Hammer claims that the Defendants violated § 1681i(a) by failing to investigate the omission of his Capital One account from his consumer report. That provision allows consumers to dispute “the completeness or accuracy of any item of information contained in a consumer’s file” and requires the CRA to “conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate.”19 If the disputed item is “inaccurate or incomplete or cannot be verified,” the CRA must promptly modify or delete it.20 Unlike § 1681e(b) which concerns the accuracy of “information,” § 1681i(a) applies only to “item[s] of information,” which are credit entries, such as an account, bankruptcy case, civil suit, or tax lien. While his Capital One account is an item in a credit file, Hammer did not dispute its accuracy or completeness. According to his complaint, he only “disputed the missing account[,] . . . stating that the Capital One account should appear on his credit report.” That is, he disputed the completeness of his credit report, not of an item in that report. As a result, he did not trigger the CRA’s § 1681i(a) obligation to investigate.