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CFPB, FTC Join in FCRA Amicus Brief
On October 4, the CFPB and the FTC filed an amicus brief in a Fair Credit Reporting Act (FCRA) case pending in the Ninth Circuit. The brief argues that the seven-year period during which a criminal arrest can be reported starts on the date of the arrest and, contrary to the district court’s decision, is not extended by a subsequent dismissal of the charges. The brief notes that FCRA previously provided that the seven-year reporting period ran “from the date of disposition [i.e., dismissal], release, or parole,” but that Congress repealed that specific provision in 1998, replacing it with the general FCRA rule that the reporting period begins when the adverse event occurs. The brief notes that Congress prescribed a different rule from some categories of information—for example, the seven-year period for reporting that a delinquent account was placed with a collection agency begins 180 days after the commencement of the delinquency that immediately preceded the collection activity.
The brief relies heavily on the FTC’s summary of staff interpretations that it issued as part of its staff report, 40 Years of Experience with the Fair Credit Reporting Act (2011), just before the Dodd-Frank Act transferred primary enforcement authority for FCRA from the FTC and gave the CFPB general rulemaking powers under FCRA. The FTC and CFPB argue that the district court erroneously relied on the FTC’s 1990 Commentary on FCRA, which did not reflect the 1998 amendments. The extensive reliance on the 40 Years Report in the brief is significant because it reflects an endorsement of the authoritativeness of that report by the CFPB, at least as to the particular issue raised in this case.
CFPB Issues FCRA Compliance Guidance
On September 4, the CFPB issued Bulletin 2013-09, which addresses a furnisher’s obligations in connection with a dispute forwarded to it by a consumer reporting agency (CRA). The Fair Credit Reporting Act (FCRA) generally requires a CRA to notify and provide information to a furnisher when a consumer disputes information provided by the furnisher to the CRA. In turn, the furnisher must conduct an investigation, review all relevant information, and respond appropriately. The CFPB’s guidance provides that compliance with the FCRA requires the furnisher to: (i) maintain a system reasonably capable of receiving from CRAs information regarding disputes, including supporting documentation; (ii) conduct an investigation of the disputed information, including information forwarded by the CRA and the furnisher’s own information with respect to the dispute; (iii) report the results of the investigation to the CRA that sent the dispute; (iv) provide corrected information to every nationwide CRA that received the information if the information is inaccurate or incomplete; and (v) modify or delete the disputed information, or permanently block the reporting of the information if the information is incomplete or inaccurate, or cannot be verified. Furnishers should consider whether these processes need to be integrated into their Compliance Management Systems.
FTC Announces Consumer Reporting Settlement
On August 15, the FTC announced that it obtained a settlement from a Certegy Check Services, Inc., a check authorization service company and consumer reporting agency (CRA) that compiles and uses consumers’ personal information to offer retailers assistance in determining whether to accept a consumer’s check. The FTC alleged that the CRA violated the FCRA and the FTC’s Furnisher Rule by failing to (i) follow required dispute resolution procedures, (ii) implement reasonable procedures to ensure the accuracy of information the firm provided to retailers, (iii) create a streamlined process for consumers to obtain free annual reports, and (iv) implement reasonable written policies and procedures regarding the accuracy and integrity of information it furnishes to other CRAs. This is the first FTC action alleging violations of the Furnisher Rule, which took effect on July 1, 2010. To resolve the FTC’s allegations, the CRA, without admitting any violations of the law, will pay $3.5 million and is required to comply with the Furnisher Rule and maintain a streamlined process so that consumers can request their free annual reports.
Maine Simplifies Credit Reporting Law
This week, Maine enacted a bill to simplify the state’s credit reporting law. The bill, SP 504, was drafted by the Bureau of Consumer Protection to ease compliance burden primarily by eliminating provisions mirroring the federal Fair Credit Reporting Act (FCRA), and instead incorporating the federal FCRA and its implementing regulations. The bill retains and reorganizes existing additional state credit reporting consumer protections.
FTC Sharpens Focus on Data Brokers
On May 7, the FTC released letters it sent to 10 data brokers warning that certain of the brokers’ practices could violate FCRA privacy protections. The announcement states that data broker companies that collect, distribute or sell information about consumers’ creditworthiness, eligibility for insurance, or suitability for employment are subject to FCRA, and as such, have an obligation to reasonably verify the identities of their customers and make sure that customers have a legitimate purpose for receiving consumer information. The letters were issued pursuant to an FTC “test-shopping” operation as part of an international privacy practice transparency sweep conducted by the Global Privacy Enforcement Network. The operation and subsequent warnings letters are the latest move by the FTC to address data broker compliance with FCRA. Last year, the FTC ordered certain data brokers to produce information about their collection and use of consumer data and announced at least one settlement with a data broker regarding FCRA compliance. However, the letters do not constitute an official notice that the companies are subject to FCRA or act as formal complaints, but rather “remind” the companies to review their practices to determine whether they are consumer reporting agencies subject to FCRA.
Tenth Circuit Holds Affidavit Sufficient to Avoid Summary Judgment on FCRA Emotional Damage Claim
Recently, the U.S. Court of Appeals for the Tenth Circuit affirmed in part and reversed in part a district court’s award of summary judgment to a mortgage servicer who provided a negative credit report after the borrower refinanced his home without notifying the closing agent that his servicing rights had been transferred. Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173 (10th Cir. 2013). The district court granted summary judgment to the servicer and its foreclosure law firm after concluding that the borrower had failed to provide sufficient evidence of actual economic or emotional damages, or willfulness to support his FCRA claim. The Tenth Circuit affirmed the district court’s determination that the borrower had not provided evidence of economic damages or willfulness, but concluded that the evidence presented was sufficient to create a genuine issue of material fact about whether the borrower suffered emotional damages and reversed and remanded for further proceedings on that claim. In so doing, the court explained that borrowers can rely solely on their own testimony to establish emotional harm if they explain their injury in reasonable detail and do not rely on conclusory statements. The appellate court also affirmed the district court’s award of summary judgment in favor of the servicer on the borrower’s FDCPA claim, concluding that the servicer acquired the debt before it was in default, and thus did not qualify as a “debt collector” under the statute.
Ninth Circuit Disapproves $45 Million FCRA Class Settlement Based on Conditional Incentive Award
On April 22, the U.S. Court of Appeals for the Ninth Circuit reversed a district court’s order approving a $45M class action settlement under FCRA on the grounds that the conditional nature of the incentive award rendered the class representatives and class counsel inadequate representatives of the absent class members. Radcliffe v. Experian Info. Solutions Inc., 11-56376, 2013 WL 1715422 (9th Cir. Apr. 22, 2013). The plaintiffs alleged that the three major credit reporting agencies issued consumer credit reports containing negative entries for debts that were already discharged through bankruptcy. The parties reached a settlement in February 2009, whereby a $45M common fund would provide an award not to exceed $5,000 to each named plaintiff, while plaintiffs suffering actual damages would receive awards ranging from $150.00 to $750.00 and the remaining class members would each recover roughly $26.00. The Ninth Circuit held that the “incentive awards” provided to the named plaintiffs “corrupt the settlement by undermining the adequacy of the class representatives and class counsel,” while the conditional nature of the awards “removed a critical check on the fairness of the class-action settlement, which rests on the unbiased judgment of class representatives similarly situated to absent class members.” The court further held that class counsel would have been disqualified under this agreement because they have a fiduciary responsibility to represent the interests of the class as a whole, and conditional incentive rewards would require class counsel to represent class members with conflicting interests. The court explained that the disparity between the awards given to the named plaintiffs and the rest of the class “further exacerbated the conflict of interest caused by the conditional incentive awards.” The court concluded that the representative plaintiffs ultimately were unable to fairly and adequately protect the interests of the class, reversed the district court’s approval of the settlement, and remanded the case for further proceedings.
Federal Court Holds Credit Furnisher Must Show Proof of Investigation of Consumer Dispute under FCRA
On February 22, the U.S. District Court for the District of Arizona held that a furnisher of credit information must present evidence regarding its investigation of a consumer's credit reporting dispute in order to satisfy the FCRA dispute resolution requirements. Modica v. Am. Suzuki Fin. Servs., No. CV11-02183-PHX, 2013 WL 656495 (D. Ariz. Feb. 22, 2013). The plaintiff leased a vehicle from the defendant and did not return it at the end of the lease term. The defendant reported the account as "current/paying as agreed" after the plaintiff returned the vehicle. The plaintiff disputed this charge to the credit bureaus which contacted the defendant to notify them of the dispute and confirm the charge. The defendant eventually changed the report to show an unpaid balance with a charge-off, prompting the plaintiff to bring suit alleging breach of contract, violation of a state law regarding credit reporting, and violation of FCRA. In denying the defendant's motion for summary judgment as to the FCRA claim, the court noted that FCRA requires a furnisher of credit information to conduct a "reasonable investigation" upon receipt of a consumer dispute. The court found that the creditor did not engage in a reasonable investigation—the defendant was unable to explain discrepancies between what it submitted to the credit reporting agencies and a letter it submitted to the plaintiff which showed she had no past due payments. In fact, the defendant was unable to say what the credit investigation entailed, a fact that precluded its claim for summary judgment.
Third Circuit Shields Property Reporting Firm from FCRA Liability
On December 6, the U.S. Court of Appeals for the Third Circuit held that a property reporting firm cannot be held liable for a willful violation of FCRA because the firm’s interpretation that it was not a consumer reporting agency subject to FCRA requirements was not unreasonable. Fuges v. Southwest Fin. Servs., Ltd., No 11-4504, 2012 WL 6051966 (3rd Cir. Dec. 6, 2012). The borrower filed a putative class action against a property reporting firm, alleging that the firm failed to comply with FCRA when it prepared a report requested by a bank in connection with the borrower’s credit application. On the reporting firm’s motion for summary judgment, the district court explained that the property report contained information about deeds, mortgages, parcel number and taxes, and lien information that more closely relate to a particular parcel of property than to a particular consumer, and that the report did not contain a social security number, payment history, previous addresses, or other information typically included in consumer credit reports. It held that no jury could find that the firm acted willfully because the firm’s reading of FCRA as not being applicable to property-reporting activities was not unreasonable, and granted summary judgment in favor of the firm. The appellate court agreed, holding that (i) the statute’s terms are ambiguous, (ii) the firm’s reading of the those terms has some foundation in the statutory text, and was therefore not objectively unreasonable, and (iii) there is no judicial or agency guidance that would suggest that the firm’s reading is contrary to the intended meaning of the provisions in question, and therefore the firm did not run a substantial risk in adopting its interpretation. Further, the court rejected the borrower’s argument that the reporting firm should lose the potential protection of the “reasonable interpretation” defense, because it never actually interpreted FCRA prior to the commencement of the suit. The court affirmed summary judgment in favor of the reporting firm.
CFPB Warns Specialty Consumer Reporting Agencies about FCRA Compliance
On November 29, the CFPB issued a bulletin to nationwide specialty consumer reporting agencies (NSCRAs) reminding such firms of their obligation under FCRA to facilitate the process by which consumers may obtain a free annual consumer report. The CFPB also announced that its enforcement team issued warning letters to several NSCRAs that may be violating FCRA, based on reviews conducted under the CFPB’s new authority to examine certain CRAs. According to Bulletin 2012-09, the CFPB expects every NSCRA to (i) enable consumers to request a free annual consumer report by a toll-free telephone number that is published as specified, (ii) ensure that its streamlined process for obtaining a free annual consumer report has adequate capacity to accept requests, (iii) collect only as much personal information from a consumer requesting a free annual consumer report as is reasonably necessary to identify the consumer properly, (iv) provide clear and easily understandable information and instructions to consumers, (v) comply with Regulation V when using or disclosing personally identifiable information collected from a consumer in connection with the consumer’s request for any FCRA-required disclosure, and (vi) accept requests for free annual consumer reports from consumers who use methods other than the streamlined process or instruct such consumers on how to use the streamlined process. The sample warning letter released by the CFPB cites possible violations of the requirements outlined in the Bulletin and urges recipients to review practices and procedures to ensure compliance.