FCRA -- 15 U.S.C. § 1681

In Hanks v. Talbott Classic National Bank, here, Judge Illston found that a Plaintiff stated a claim against a creditor when a charge-off notation reported to the CRAs pre-Petition was re-inserted post-Discharge.  In so doing, Judge Illston implied that the pre-Petition charge-off reporting complied with FCRA, but found that the re-insertion post-Petition did not and that the Plaintiff was not deprived… Read More

In Drew v. Equifax Information Services, LLC --- F.3d ----, 2012 WL 3186110 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit held that a furnisher could have violated its statutory duty under FCRA to block all reporting following its investigation of the consumer's identity theft claim.  A consumer had reported to a credit bureau that his identity had… Read More

In Cousineau v. Unifund CCR Partners, 2012 WL 3135687 (D.Colo. 2012), Judge Arguello held that a Plaintiff still must demonstrate factual inaccuracy of a credit report regardless of how well a furnisher re-investigates a consumer dispute. Plaintiff contends that Defendant's investigations were unreasonable because Defendant failed to discover documents from Chase showing that Plaintiff asked to be removed from the… Read More

In Mortimer v. JP Morgan Chase Bank, Nat. Ass'n, 2012 WL 3155563 (N.D.Cal. 2012), Judge Wilken addressed the impact of a now commonly-pleaded claim that a creditor continued to report late payments that were not made during a bankruptcy.  Judge Wilkens found that Plaintiffs failed to plead an inaccuracy – meaning that they actually made the payments during the bankruptcy… Read More

In Subhani v. JPMorgan Chase Bank, Nat. Ass'n, 2012 WL 1980416 (N.D.Cal. 2012), Judge Alsup found FCRA pre-emption of the UCL and Song-Beverly Act, except where such claims arose from Civil Code § 1785.25(a) under Gorman.  Judge Alsup explained: In the wake of Gorman, at least two courts in this district have held that claims brought under California's UCL predicated… Read More

Yesterday, the FTC prevailed against the National Automobile Dealers' Association's challenge to the FTC's Risk Based Pricing Rules under FACTA.  The FTC's Motion to Dismiss was granted and the NADA's Summary Judgment Motion was denied.  (National Auto. Dealers Ass'n v. F.T.C., --- F.Supp.2d ----, 2012 WL 1854088 (D.D.C. 2012) Judge Huvelle summarized the case as follows: The National Automobile Dealers… Read More

In Consumer Data Industry Ass'n v. King, --- F.3d ----, 2012 WL 1573563 (10th Cir. 2012), the Court of Appeals for the Tenth Circuit held that the consumer reporting agency trade group – the Consumer Data Industry Association – had standing to challenge New Mexico’s identity theft/credit reporting laws as preempted by FCRA. The CDIA’s challenge to New Mexico’s law… Read More

In Gauci v. Citi Mortg., 2012 WL 1535654 (C.D.Cal. 2012), Judge Otis Wright held that FCRA’s accuracy requirement is not designed to adjudicate a dispute between a furnisher, CRA, and a consumer. Plaintiff argues that “CMI had no right to have deemed Plaintiff a delinquent payer when CMI made the mistake of charging Plaintiff an incorrect amount of taxes.” (Opp'n… Read More

In Shap v. Capital One Financial Corp., 2012 WL 1080127 (E.D.Pa. 2012), Judge Rufe followed Saunders and Gorman to hold that a furnisher who fails, on re-investigation, to mark an account as ‘disputed’ can violate FCRA. In Gorman v. Wolpoff & Abramson, LLP, the Ninth Circuit found the reasoning in Saunders persuasive, holding that a furnisher's failure to report that… Read More

In Rodriguez v. Cavalry Portfolio Services, LLC, 2012 WL 726474 (S.D.Cal. 2012), Judge Burns held that a debt collector, under the circumstances, has a ‘permissible purpose’ under FCRA to request a credit report from a consumer reporting agency: Rodriguez alleges that Cavalry pulled his credit report for an improper purpose. He is wrong. A debt collector may access a consumer's… Read More

In National Auto. Dealers Ass'n v. F.T.C., --- F.3d ----, 2012 WL 695526 (C.A.D.C. 2012), the NADA’s challenge to the FTC’s “risk-based pricing rules” hit a procedural snag in the D.C. Circuit Court, which found that the matter must first be initiated in the District Court. The Circuit Court described the challenge as follows: In 2003, Congress passed the Fair… Read More

In El-Aheidab v. Citibank (South Dakota), N.A., 2012 WL 506473 (N.D.Cal. 2012), Judge Chen carved out an exception from FCRA pre-emption of the UCL that we had fought so hard to win in the Howard v. Blue Ridge Bank case.   Judge Chen found no impediment to maintaining a UCL claim with an embedded CCRAA claim because Gorman had held that… Read More

In Ali v. Capital One, 2012 WL 260023 (E.D.Cal. 2012), Judge O’Neill explained the unsettled area of FCRA pre-emption of common law defamation claims:    Plaintiff's defamation claim is based on the allegation that defendant furnished inaccurate information to consumer reporting agencies knowing that the information was false. Because her claim is based on the furnishment of information to a… Read More

In Wisdom v. Wells Fargo Bank NA, 2012 WL 170900 (D.Ariz. 2012), Judge Snow held that FCRA does not authorize recover for commercial losses.    The FCRA defines a “consumer” as “an individual,” 15 U.S.C. § 1681a(c), and provides for the recovery of “any actual damages sustained by the consumer.” 15 U.S.C. § 1681 o(a)(1). It does not provide for… Read More

In Dunkinson v. Citigroup Inc., 2012 WL 32573 (D.N.J. 2012), Judge Sheridan addressed within the context of FCRA, the FCBA, and the FDCPA a situation often foisted upon finance companies:  a divorced husband and wife’s divorce degree allocates financial responsibility to one divorced party, and the non-obligor spouse seeks to bind the finance company to that decree.  Judge Sheridan properly… Read More

In Bailey v. Santander Consumer USA, 2012 WL 37537 (M.D.N.C. 2012), Judge Auld found that a FCRA Plaintiff’s failure to oppose an MSJ filed by a furnisher was, by itself, insufficient grounds to award ‘reverse’ attorneys’ fees against the Plaintiff under FCRA.  Judge Auld explained:    Santander also contends that it is entitled to relief in the form of attorney's… Read More

In MacPherson v. JPMorgan Chase Bank, N.A., --- F.3d ----, 2011 WL 6450777 (2d Cir. 2011), the Court of Appeals for the Second Circuit held that FCRA pre-empts common law defamation claims arising from false or inaccurate information furnished to a consumer reporting agency.  Macpherson alleged that Chase willfully and maliciously provided false information about his finances to Equifax, a… Read More

In Reed v. First Premier Bank, 2011 WL 6153100 (D.S.D. 2011), Judge Schreier found for a furnisher against a consumer's claim that the furnisher failed to report the account as disputed.  Judge Schreier explained: A furnisher cannot be held liable under section 1681s–2(b) simply for failing to report that a debt is disputed. Rather, a furnisher may only be liable if the… Read More

In Rydell v. Servco Auto Windward, 2011 WL 5506088 (D.Hawai'i 2011), Judge Seabright found that a car dealer did not violate FCRA in a spot-delivery situation by making multiple inquiries on a consumer’s credit report or by obtaining a credit report from all-three credit reporting agencies.  Judge Seabright explained:   The scope of Servco's “permissible purpose” extends beyond accessing a… Read More

In Corby v. American Exp. Co., 2011 WL 4625719 (C.D.Cal. 2011), Judge Wright found that, under Nelson, a consumer can only recover under FCRA for a section 1681s-2(b) claim – meaning, the consumer must first dispute the claim with the credit reporting agency.  Judge Wright as a corollary therefore held that a consumer can not recover for wrongful or inaccurate… Read More