FCRA -- 15 U.S.C. § 1681

The Court of Appeals for the Ninth Circuit today allowed the National Association of Screening Agencies, the California Bankers Association, and the Consumer Data Industry Association leave to file amicus curiae briefs in support of Defendant-Appellee’s Petition for Rehearing and Rehearing En Banc.  See the Order here and my article here regarding the split of authority between the federal and state appellate… Read More

In Drew v. Equifax, 2009 WL 595459 (N.D.Cal. 2009), Judge Illston held that a furnisher was on notice of a consumer dispute when the CRA merely sent a letter to the furnisher notifying the furnisher that it had deleted the customer’s trade-line because the account was fraudulent.   Judge Illston explained:   Chase contends that it is entitled to summary judgment… Read More

See my March 4, 2009 article in the Consumer Financial Services Law Report here. Source:  Consumer Financial Services Law Report. Copyright 2009 by LRP Publications, P.O. Box 24668, West Palm Beach, FL 33416-4668. All rights reserved. For more information on this or other products published by LRP Publications, please call 1-800-341-7874 or visit their website at: www.shoplrp.com Read More

In Zimmerman v. Bank of America, , 2009 WL 418606 (N.D.Miss 2009), Judge Mills ruled on what constitutes a “reasonable investigation” by a furnisher after it receives a consumer dispute verification from a credit reporting agency which gives notification of such dispute by the consumer.  Judge Mills found the question of “reasonableness” best left to Mississippi juries.    The Fifth… Read More

In Wold v. Dell Financial Services, L.P., 2009 WL 397235 (D.Minn. 2009), Judge Davis ordered a FCRA claim to arbitration due to an arbitration clause contained in Dell’s computer purchase agreement.    Wold argues that the arbitration clause at issue in this case is unconscionable because, if enforced, it would require him to take his federally-protected claims to arbitration rather… Read More

In Irvine v. 233 SKYDECK, LLC, --- F.Supp.2d ----, 2009 WL 347395 (N.D.Ill. 2009) Judge Leinenweber rejected a constitutional challenge to FACTA’s punitive damages provision, a challenge approved of in Grimes v. Rave Motion Pictures Birmingham, L.L .C., 552 F.Supp.2d 1302 (N.D.Ala., 2008). In Irvine, the district court held: Defendant's vagueness challenge relies on the Northern District of Alabama decision Grimes… Read More

In Piccini v. Wells Fargo Auto Finance, Inc. 2009 WL 307276 (D.Ariz. 2009), Judge Campbell of the District Court of Arizona enforced Wells Fargo’s arbitration clause to cover credit reporting claims under FCRA.  Judge Campbell explained   Plaintiff does not dispute the validity of his agreement with Wells Fargo, nor does he contend that the arbitration clause is unenforceable. Dkt. #… Read More

In Sanai v. Saltz --- Cal.Rptr.3d ----, 2009 WL 162059 (2009), the Second District Court of Appeal declined to follow the First District Court of Appeal's decision in Liceaga on December 30, 2008, finding a private right of action under the CCRAA (Civil Code § 1785.25(a)) pre-empted by FCRA.  Instead, the Second District Court of Appeal followed the Court of… Read More

In Gorman v. Wolpoff & Abramson, LLP, __ F.3d __ 2009 WL 57091 (9th Cir. 2009) the Court of Appeals for the Ninth Circuit held, among other things, that FCRA does not pre-empt Civil Code 1785.25 of the CCRAA.  This holding overrules multiple district court opinions to the contrary, and is opposite to the California Court of Appeal's decision on December… Read More

In Liceaga v. Debt Recovery Solutions, L.L.C. __ Cal.App.4th __ 2008 WL 5392184 (2008), the First District Court of Appeal found no private right of action under California's Consumer Credit Reporting Agencies Act because FCRA pre-empts it.  The Court explained We are not alone in our determination that the California exception is limited and does not allow a private right… Read More

The Federal Trade Commission said it would delay implementation of what is known as the “Red Flag” rules from Nov. 1 to May 1, 2009. The rule requires that creditors adopt programs to identify and respond to indicators of identity theft.For the FTC's Notification, please see http://www.ftc.gov/opa/2008/10/redflags.shtm Read More

In Roybal v. Equifax, Judge England issued three separate opinions addressing liability of furnishers and credit reporting agencies.  In Roybal v. Equifax, 2008 WL 453447 (E.D.Cal. 2008), Judge England addressed the CRAs for publishing allegedly inaccurate credit information about the plaintiff.  First, Judge England allowed a wife to pursue a claim for inaccuracies in the husband's credit report:   The… Read More

United States District Court Judge David Carter recently approved a sweeping class action settlement under which the three credit reporting agencies have agreed to scrub historical data regarding bankrupt debtors.  White v. Experian, et. al. Case No. SACV 05-1070 DOC (MLGx) (C.D.Cal. 2008) Essentially, the CRAs typically would remove pre-bankruptcy debts from consumers' credit files only if the furnishers updated… Read More

Reminder:  FACTA Red Flag Rules become mandatory November 1, 2008.    From the FTC's website: The Federal Trade Commission (FTC), the federal bank regulatory agencies, and the National Credit Union Administration (NCUA) have issued regulations (the Red Flags Rules) requiring financial institutions and creditors to develop and implement written identity theft prevention programs, as part of the Fair and Accurate Credit… Read More

In Yasin v. Equifax Information Services, Inc. 2008 WL 2782704 (N.D.Cal. 2008), Judge Chesney conducted an analysis of FCRA and held that "equitable relief is not available as a remedy" under FCRA, citing Howard v. Blue Ridge Bank 371 F.Supp.2d 1139, 1145 (N.D.Cal.2005).  Judge Chesney also used an analogy to the FDCPA, finding in dicta that the FDCPA does not either. Read More

On July 3, 2008, Judge Conti ruled in Cruz v. MRC Receivables, Inc. -- F.Supp.2d -- 2008 WL 2627143 (N.D.Cal. 2008) on a debt collector's summary judgment motion in an FDCPA claim alleging that inclusion of the Notice of potentially adverse credit reporting required by California Civil Code § 1785.26 and 15 U.S.C. 1681s-2(a)(7)(A)(i) constituted an unfair collection tactic because… Read More

In Witt v. Experian Information Solutions, Inc. 2008 WL 2489132 (E.D.Cal. 2008), Witt sued a Real-Time Resolutions, Inc., a furnisher of credit information under FCRA.  On June 16, Judge O'Neal of the USDC for the Eastern District dismissed Real-Time's collection action, which Real-Time filed as a counter-claim to the FCRA claim.  Judge O'Neal, following Sparrow v. Mazda American Credit 385… Read More

In Saunders v. Branch Banking & Trust of Virginia, the Court of Appeals for the Fourth Circuit affirmed a punitive damage award against an automobile lender that had failed to report to the Credit Reporting Agencies in response to a Consumer Dispute Verification that the consumer disputed the account.  The Court of Appeals found that a furnisher's failure to report… Read More

In Grimes v. Rave Motion Pictures No. 07-AR-1397-S (N.D.Ala. 2008), Judge William Acker found FACTA's penalty provision of "damages of not less than $100 and not more than $1,000" for each violation unconstitutionally vague in the context of a FACTA claim arising out of businesses' failure to truncate credit card numbers on electronically printed receipts.  The Court noted that imposing… Read More