Pre-emption

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In Espinoza v. Hunt & Henriquez, 2018 WL 6330895, at *2–3 (N.D.Cal., 2018), Magistrate Judge Cousins allowed a CCRAA claim past the pleadings stage. In her complaint, Espinoza alleges that Merrick violated § 1785.25(a). See Compl. ¶ 51. Thus, on the face of her complaint, Espinoza's CCRAA claim is not preempted by the FCRA. See U.S.C. § 1685t(b)(1)(F). Merrick, however,… Read More

In Thornton v. Equifax, 2018 WL 5792816 (M.D.Ga. 2018), Judge Land found that the FCRA pre-empted all common-law state law claims. The facts were as follows: Thornton filed a Chapter 7 bankruptcy petition. He received a discharge of his debts on February 7, 2017, including his delinquent accounts with Kinetic. Thornton alleges that although Kinetic received notice of his discharge from… Read More

In Lee v. Professional Recovery Systems, Inc.,  2018 WL 1008432, at *3–6 (Cal.App. 1 Dist., 2018), the Court of Appeal held in an unpublished decision that the FCRA preempts the Rosenthal Act. Defendants contend this claim [violation of section 1788.17 --Ed.] is preempted by title 15 of the United States Code, section 1681t (governing credit reporting). . . . The violations plaintiff alleges… Read More

In Galper v. JP Morgan Chase Bank, N.A., 2015 WL 5711882, at *5-8 (C.A.2 (N.Y.),2015), the Court of Appeals for the Second Circuit held that New York's ID Theft Laws were not preempted by FCRA with respect to furnisher misconduct that was not regulated by 15 USC 1681(s)-2 of FCRA. Here, the language of the provision expresses Congress's intent to preempt… Read More

In Alborzian v. JPMorgan Chase Bank, N.A., --- Cal.Rptr.3d ----, 2015 WL 1114426 (Cal.App. 2 Dist. 2015), the California Court of Appeal addressed whether a sold-out junior mortgage holder violated the FDCPA/Rosenthal Act by collecting on the debt post-foreclosure by the senior. A lender who lends money used to purchase a parcel of property and who holds a junior lien on that… Read More

In Farber v. JPMorgan Chase Bank N.A., 2014 WL 68380 (S.D.Cal. 2013), Judge Curiel found that mortgage servicers were subject to the Rosenthal Act, but found that only certain conduct might be actionable.  The facts were as follows: In September 2010, Farber sold the Property by way of a “short sale” with Defendant receiving approximately $1,139,345.00. (Id. ¶ 21.) In… Read More

In Lovejoy v. Bank of America, N.A., 2013 WL 3360898 (N.D.Cal. 2013), Judge Ryu found sections 1785.25(b)-(c) of the CCRAA to be pre-empted by FCRA, even though section 1785.25(a) was not.  Plaintiffs argue that these sections not preempted because they are “informal remedies that compliment Section 1785.25(a),” which bars furnishers from re-porting incomplete or inaccurate information. (Pls.' Opp'n 9–10.) The… Read More

In Vartanian v. Portfolio Recovery Associates, LLC, 2013 WL 877863 (C.D.Cal. 2013), Judge Otis Wright III addressed a litany of FCRA and FDCPA claims brought by the Kaas Law Group.  Judge Wright held that a FCRA Plaintiff need not plead that its dispute to the CRA was not frivilous; i.e. non-frivilousness is not an element of a FCRA claim. Contrary… Read More

In Iyigun v. Cavalry Portfolio Services, LLC, 2013 WL 93114 (C.D.Cal. 2013), Judge Fitzgerald found no FCRA/CCRAA claim properly pleaded for wont of an inaccuracy. Iyigun's claims for violations of the Fair Credit Reporting Act (“FCRA”) and the California Consumer Credit Reporting Agencies Act (“CCRAA”) fail because the FAC does not sufficiently plead the element of inaccurate credit reporting. The… Read More

In Dabney v. Total Relocation Services, LLC, Not Reported in A.3d, 2013 WL 68727 (N.J.Super.A.D. 2013), the New Jersey appellate court found, in an unpublished decision, complete preemption of common defamation claims by FCRA. Having canvassed the vast array of judicial opinions dealing with FCRA preemption, we conclude that the straight forward total preemption approach of these courts of appeal is most… Read More

In Mortimer v. Bank of America, N.A., 2013 WL 57856 (N.D.Cal. 2013), Judge Spero rejected a FCRA plaintiff's complaints about a creditor's reporting of his account through and after bankruptcy, but allowed leave to amend as to Plaintiff's CCRAA and UCL claims. Several courts, including two in this district involving closely analogous factual situations, have held that reports, after discharge, of delinquencies… Read More

In Mann v. Wells Fargo Bank, 2012 WL 3727369 (N.D.Cal. 2012), Judge Ryu found defamations completely preempted by FCRA.  The facts, arising out of a mortgage loan, were as follows: In July 2005, Plaintiffs obtained first and second home mortgages in the amounts of $484,000 and $121,000, respectively, on their home and real property located in El Dorado Hills. (Compl.¶ 11.) Wells… Read More

In Fleischmann v. Care Credit, 2012 WL 6082893 (C.D.Cal. 2012), Judge Pregerson found parts of California’s Song-Beverly Credit Card Act pre-empted by FCRA.  Plaintiff financed her refractive surgery, and ended up with a dispute over whether she’d paid it in full or not.  She alleged a host of claims, one of which was under the Song-Beverly Credit Card Act.  Judge… Read More

In Grantham v. Bank of America, N.A., 2012 WL 5904729 (N.D.Cal. 2012), Judge James held that a Plaintiff stated a claim against a Bank for post-bankruptcy discharge credit reporting. In February 2011, Grantham sent a dispute letter to Experian requesting an investigation of the 1051 Account, disputing the alleged delinquencies reported in her credit report while her bankruptcy petition was… Read More

In Carson v. Bank of America, N.A., 2012 WL 5041359 (E.D.Cal. 2012), Judge Englund found that FCRA pre-empted Plaintiff’s tort claims for false light and invasion of privacy. Plaintiffs' seventh claim is for false light invasion of privacy. Plaintiffs allege, specifically, that Defendant “reported Plaintiffs late on their mortgage payments, when they were not in fact late, and initiating foreclosure… Read More

In Ramirez v. Trans Union, LLC, --- F.Supp.2d ----, 2012 WL 4954120 (N.D.Cal. 2012), Judge Corely allowed a CCRAA claim to proceed against a CRA simultaneously with a FCRA claim, and found that FCRA’s prohibition against injunctive relief did not apply to CCRAA claims.  The District Court found no impediment to simultaneously maintaining CCRAA and FCRA claims. The only California… Read More

In Harrold v. Experian Information Solutions, Inc., 2012 WL 4097708 (N.D.Cal. 2012), Judge Alsup found that FCRA still pre-empts other parts of the CCRAA that were not addressed by Gorman. The FCRA provides that “[n]o requirement or prohibition may be imposed under the laws of any State ... relating to the responsibilities of persons who furnish information to consumer reporting… Read More

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 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

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