Pre-emption

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

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 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 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 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

In Brown v. Mortensen, 2011 WL 2409912 (2011), the California Supreme Court held that FCRA only preempted claims against furnishers based on duties to provide accurate information and to take action upon being notified of a dispute and that FCRA did not preempt CMIA claims based on disclosure of medical information to CRAs. Read More

The United States Supreme Court decided not to take a better look at the Court of Appeals for the Ninth Circuit's holding in Gorman that FCRA did not pre-empt any remedy available under the Consumer Credit Reporting Agencies Act.  The cite is FIA Card Services, N.A. v. Gorman -- S.Ct. --, 2010 WL 1047883 (2010) Read More

In Carvalho v. Equifax Information Services, LLC, -- F.3d -- 2010 WL 3239477 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit confirmed FCRA pre-emption of California's CCRAA -- except Civil Code 1785.25(a).  The Court of Appeals explained: Because the private right of action to enforce section 1785.25(a) is found in sections 1785.25(g) and 1785.31, which are not… Read More

In Janti v. Encore Capital Group, Inc. 2010 WL 3058260 (S.D.Cal. 2010), Judge Sammartino held that the Plaintiff stated a class action claim against a debt collector for allegedly collecting out-of-statute debt.  Judge Sammartino held that the Plaintiff had properly pleaded claims under the FDCPA and UCL, but not the FCRA, explaining that the least sophisticated consumer could have believed… Read More

In Wang v. Asset Acceptance, L.L.C., 2010 WL 40984 (N.D.Cal. 2010), Judge Conti rejected Plaintiff's assertion that the duty to report accurate information information under Civil Code 1785.25(a) also includes the obligation to note an account as disputed, since such obligation is required by section 1785.25(c).  Judge Conti explained Here, in his second cause of action, Wang alleges that despite being… Read More

FCRA's pre-emptive reach is broad, preempting even California's Confidentiality of Medical Information Act.  The Court of Appeal in Brown v. Mortensen 2010 WL 324749 (2010) explained: As previously noted, we have found no cases addressing the interplay of the CMIA and the FCRA. However, multiple federal district courts have addressed the scope of FCRA preemption under section 1681t(b)(1)(F). For example, in Pirouzian… Read More

The Court of Appeals for the Ninth Circuit re-issued its Gorman decision, following re-hearing petitions filed by industry, with mere commentary in footnotes.  With these amendments, the panel unanimously has voted to deny Appellant’s petition for rehearing en banc and Appellee’s petition for panel rehearing and petition for rehearing en banc.  The full court has been advised of the petitions… Read More

The 9th Circuit and a number of California Court of Appeal decisions have split on FCRA pre-emption of California's CCRAA.   We wrote about it here.  The parties have sought rehearing of Gorman in the 9th Circuit.  Some of the briefs are here:  MBNA's Brief on Rehearing; CDIA's Amicus Brief on Rehearing, CBA's Amicus Brief on Rehearing; Gorman's Opposition to Rehearing;… Read More

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

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 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