District Court (N.C.) Holds that Due to Voluntary Nature of Reporting under FCRA, FCRA Affords No Remedy to Consumer Complaining about Deletion of Trade Line and Failure to Report “Positive” Information about the Consumer’s Credit History

In Hill v. Equifax Information Services, LLC, 2013 WL 6241043 (M.D.N.C. 2013), Judge Eagles found that FCRA provides no cause of action against a furnisher for failing to report a debtor’s positive trade-line to a consumer reporting agency.  The facts were as follows:

Mr. Hill has alleged several causes of action against Dell, all of which stem from the absence of information about a Dell credit account on his credit report. ( See Doc. 11 at ¶¶ 172–203.) Mr. Hill opened a charge card account through Dell in 2004. ( Id. at ¶ 32.) He paid the account in full and closed it voluntarily in March 2009. ( See id.; Doc. 52–1 at 4.) In 2012, Mr. Hill noticed that this account no longer appeared on his Equifax credit report. (Doc. 11 at ¶ 34.) Mr. Hill contacted Dell about this and Dell told him that it reported the account to various Credit Reporting Agencies (“CRAs”). ( Id. at ¶ 35.) However, as of March 2013, the Dell account was still absent from his credit reports. ( See  id. at ¶ 36.) Mr. Hill again contacted Dell and was again informed that the account had been reported to the CRAs. ( Id. at ¶¶ 36–37.) Mr. Hill also contacted the CRAs about the missing account in 2013 and received various responses. Equifax allegedly never reported back to Mr. Hill, ( id. at ¶ 49), Experian allegedly told Mr. Hill to contact Dell, ( id. at ¶ 54), and Transunion allegedly told Mr. Hill that it could not find the account because Dell had deleted it and that he should contact Dell. ( Id. at ¶ 64.) Mr. Hill seems to allege alternatively that Dell did re-report the account and the CRAs ignored it or that Dell did not actually re-report the account. ( Id. at ¶¶ 78–79, 83.)  ¶  Mr. Hill alleges he has been harmed because the absence of his positive credit history with Dell hurts his credit score overall. ( Id. at ¶ 85.) Thus, unlike most FCRA claims, Mr. Hill is not disputing the inclusion of negative information; rather, he is disputing the absence of positive information. The Court concludes that Dell has no legal duty to furnish this information to CRAs and even if Dell chooses to furnish this information, Dell has no power to make the CRAs report it. For these reasons, as explained more fully below, Dell’s motion to dismiss Mr. Hill’s claims for failure to state a claim will be granted.

The District Court found no FCRA violation under these circumstances:

Mr. Hill first alleges that Dell violated 15 U.S.C. § 1681s–2(b). (Doc. 11 at ¶ 173.) This section of the FCRA imposes several duties on furnishers of credit information. See § 1681s2(b)(1)(A)-(E). It applies only when the consumer has disputed “the completeness or accuracy of any information provided by” a furnisher. § 1681s–2(b)(1). If the furnisher has not provided any information, then by its terms this section does not apply. ¶  Other provisions in § 1681s–2(b) reinforce the conclusion that this section and the duties it imposes on furnishers do not apply in cases where information has not been provided. For example, the duties on furnishers in § 1681s–2(b) are triggered by notice from CRAs that a consumer has disputed “the completeness or accuracy of any item of information contained in [the] consumer’s file.” Id. § 1681i(a)(1)(A) (emphasis added). Again, this provision refers only to items of information that are in the consumer’s credit report; it does not apply to items of information that have not been provided or are not being reported. Further, § 1681s–2(b) provides that “if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified,” the furnisher shall “(i) modify that item of information; (ii) delete that item of information; or (iii) permanently block the reporting of that item of information.” Id. § 1681 s–2(b)(1)(E). These remedies do not make sense when applied to an account that has not been reported. Dell cannot modify, delete, or permanently block an account that it has not reported or that it already stopped reporting.  ¶  “[W]hen the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Black & Decker Corp. v. United States, 436 F.3d 431, 436 (4th Cir.2006) (quoting Lamie v. United States Tr., 540 U.S. 526, 534 (2004)) (quotation marks omitted). The text and meaning of § 1681s–2(b) are clear. The section imposes duties on furnishers related to items of information in the consumer’s credit report. It is designed to remedy situations where a consumer disputes an inaccurate or incomplete item on her credit report. See Chi Chi Wu & Elizabeth De Armond, Fair Credit Reporting §§ 1.4.6, 6.1.1 (7th ed.2010) (discussing legislative history behind duties imposed on furnishers). It does not apply to situations where a consumer’s credit report lacks positive information that the consumer would like to be reported. Id. at § 4.3.2.3 (suggesting that withholding positive data is not actionable under the FCRA). This is consistent with the voluntary nature of credit information furnishing. See  Evans v. Trans Union LLC, No. 2:10–cv00945, 2011 WL 672061, at *3 (S.D.W.Va. Feb. 14, 2011) (“[T]he FCRA does not impose upon furnishers a duty to report credit information at all.”); cf. Procedures to Enhance the Accuracy & Integrity of Information Furnished to Consumer Reporting Agencies, 71 Fed.Reg. 14419, 14421 (Mar. 22, 2006) (“Most of the information that consumer reporting agencies collect and maintain is provided voluntarily by furnishers.”). ¶  It does not matter whether the information about Mr. Hill’s Dell account no longer appears on his credit report because Dell stopped furnishing the information, because the CRAs did not report it, or for some other reason. ( See Doc. 52–2 (letter from Transunion stating that Dell could not locate Mr. Hill’s account); Doc. 52–3 at 5–6 (letter from Dell stating that it reported Mr. Hill’s account to CRAs).) Section 1681 s–2(b) does not provide a cause of action against a furnisher in any of these circumstances. Mr. Hill has failed to state a claim for which relief may be granted under § 1681s–2(b), and his claim under this section will be dismissed.