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On June 29, the U.S. District Court for the Eastern District of Missouri granted in part and denied in part a Wisconsin-based debt collection agency’s (defendant) motion for judgment in an FCRA and FDCPA case where the plaintiff alleged the defendant failed to update the information it was furnishing to credit bureaus after the plaintiff notified a credit bureau that she was no longer disputing the debt. Prior to February 2020, the plaintiff disputed the accuracy of a tradeline by the defendant appearing on her credit report with an unspecified party and then notified a credit reporting agency that she was no longer disputing the debt. The credit reporting agency forwarded the plaintiff’s notice to the defendant. After the plaintiff saw that the tradeline was still reported as disputed on her credit report, she filed suit alleging the defendant violated the FCRA by failing to conduct a proper investigation after being notified that the plaintiff was no longer disputing the debt and the FDCPA for reporting information it had knowledge of being false. The defendant argued “that it cannot be liable under the FCRA based on [the plaintiff’s] allegations because it had no new information to ‘reasonably investigate.’” However, the court denied the defendant’s motion for judgment on the pleadings as to the plaintiff’s FCRA claims stating that, “at this stage of the case, the Court cannot determine whether it would have been reasonable for [the defendant] to rely solely on its own files when performing its investigation after receiving [the plaintiff’s] letter stating that she no longer disputed her tradeline.” With respect to the FDCPA claim, the court cited the 8th Circuit’s ruling in Wilhelm v. Credico, Inc., which held that “whether ‘the consumer has disputed a particular debt’ is ‘always material’ and thus a debt collector must disclose that an account is disputed when it ‘elects to communicate ‘credit information[,]’ the fact that an account is no longer disputed would also be material.” In addition, the court found that the plaintiff failed to state a claim pursuant to the alleged FDCPA violation because she did “not allege any facts demonstrating that [the defendant] continued to report false credit information after it received notice from [a reporting agency] that she no longer disputed her [debt].” However, the court granted the plaintiff leave to file an amended complaint.
On July 1, the CFPB released an enforcement compliance bulletin to reiterate to landlords, consumer reporting agencies (CRAs), and others of their obligation to correctly report rental and eviction information. The CFPB noted that it is “concerned that the end of the CDC eviction moratorium could mean both an increase in negative rental information in the consumer reporting system and an increase in consumers seeking rental housing.” According to the bulletin, the CFPB intends to examine if landlords, property management companies, and debt collectors are reporting accurate information to CRAs and complying with their dispute-handling obligations under the FCRA. Specifically, the Bureau will “pay particular attention to whether furnishers are reporting arrearages” regarding amounts paid on behalf of a tenant through a government grant or relief program and fees or penalties prohibited by CARES Act or other laws. In addition, the Bureau noted that it intends to look at whether CRAs are, among other things: (i) following procedures to only include accurate rental information in individuals’ consumer reports; (ii) reporting rental information for the consumer who is the subject of the report; (iii) reporting accurate and complete eviction information; and (iv) properly investigating when inaccuracies are reported by the consumer.
On June 25, the U.S. Supreme Court issued a 5-4 decision in TransUnion LLC v. Ramirez, holding that only a plaintiff concretely harmed by a defendant’s violation of the FCRA has Article III standing to seek damages against a private defendant in federal court. In writing for the majority, Justice Brett Kavanaugh reversed and remanded a 2020 decision issued by the U.S. Court of Appeals for the Ninth Circuit, which found that all 8,185 class members had standing to recover statutory damages due to, among other things, TransUnion’s alleged “reckless handling of information” from the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), which, according to the appellate court, subjected class members to “a real risk of harm” when TransUnion erroneously linked class members to criminals and terrorists with similar names in a database maintained by OFAC. (Covered by InfoBytes here.) The 9th Circuit, however, did reduce punitive damages, explaining that, although TransUnion’s “conduct was reprehensible, it was not so egregious as to justify a punitive award of more than six times an already substantial compensatory award.” TransUnion filed a petition for writ of certiorari after the 9th Circuit denied its petition for rehearing.
The Court considered whether federal courts can certify consumer classes where the majority of class members have not alleged the type of concrete injury necessary to establish Article III standing, even if the named plaintiff suffered an injury meeting this bar. The parties stipulated prior to trial that only 1,853 members of the class had misleading credit reports containing OFAC alerts provided to third parties during the period specified in the class definition, whereas the remaining class members’ credit files were not provided to any potential creditors during that period. In applying the standing requirement of concrete harm, the majority concluded that the 6,332 class members whose credit reports were not provided to third parties did not suffer a concrete harm and thus did not have standing as to the reasonable-procedures claim. The majority further determined that even though all 8,185 class members complained about alleged formatting defects in certain mailings sent to them by TransUnion, only the lead plaintiff had demonstrated that the alleged defects caused him concrete harm, thus only he could move forward with those claims. According to the majority, the remaining class members failed to explain how the formatting error prevented them from requesting corrections to prevent future harm.
“The mere existence of inaccurate information, absent dissemination, traditionally has not provided the basis for a lawsuit in American courts,” the majority wrote, adding that while the Court “has recognized that material risk of future harm can satisfy the concrete-harm requirement in the context of a claim for injunctive relief to prevent the harm from occurring, at least so long as the risk of harm is sufficiently imminent and substantial,” in this instance the 6,332 class members have not demonstrated that the risk of future harm materialized.
On June 8, the U.S. District Court for the Middle District of Alabama granted a defendant auto finance company’s motion for judgment on the pleadings in an action concerning alleged violations of the FCRA. The plaintiff filed an action against the defendants (an auto finance company and a financial service company) alleging that her credit report included an inaccurate or misleading “Errant Tradeline” in violation of the FCRA because it identified a paid off loan as being “closed” with a “$0 balance,” but also indicated that the loan had a monthly payment amount of $669. The plaintiff argued that this created “the impression that she still ha[d] an outstanding loan” as well as upcoming payments and alleged that the inaccurate reporting caused her financial and emotional damages. The plaintiff also claimed that the auto finance company negligently or willfully violated the FCRA because it failed to conduct a proper investigation. Upon review, the court granted the motion by the auto finance company, finding that because the balance listed says “$0,” and the account is listed as “closed,” there is “little opportunity for confusion when the alleged Errant Tradeline is reviewed in context.” The court further noted that “the context of the report reveals that the monthly payment line is neither inaccurate nor misleading.”
On May 20, the U.S. District Court for the Eastern District of Pennsylvania partially granted defendants’ motion for summary judgment in an action concerning alleged violations of the Pennsylvania Motor Vehicle Sales Finance Act (MVSFA) and the FCRA. The plaintiff filed an action against the defendants (an auto finance company and the three major consumer reporting agencies (CRAs) alleging he was unable to obtain credit and suffered loss of work, car rental expenses, and emotional distress following the repossession and sale of his vehicle after he allegedly breached his retail installment sale contract by exposing his vehicle to a lien for accumulated storage charges at a repair facility while waiting for a replacement part to arrive. After the vehicle was repossessed, the plaintiff sent letters to the CRAs disputing the reported information and asked that notations, including “voluntary surrender,” be removed from his credit file. According to the plaintiff, the disputed information was removed from his file well outside the 30-day timeframe required under the FCRA to reinvestigate and delete inaccurate information. The plaintiff also alleged that the auto finance company violated the MVSFA’s provisions governing notice of repossession. Upon review, the court granted defendants’ request for summary judgment on the MVSFA claim, agreeing with the auto finance company that the statute’s repossession notice provisions do not confer a private right of action. However, the court denied summary judgment on the FCRA claim, writing that “the record reflects genuine disputes of material fact as to whether [the auto finance company] reported inaccurate information and whether it reasonably investigated [p]laintiff’s disputes.”
On May 13, the U.S. District Court for the Eastern District of Michigan denied a motion to dismiss filed by the Department of Education (Department), ruling that the FCRA “unequivocally waives sovereign immunity” concerning the allegations at issue in the case. In the lawsuit, the plaintiff alleges, among other things, that the Department violated Section 1681s-2(b) of the FCRA by “negligently and willfully” failing to conduct a proper investigation of her dispute and by failing to remove an erroneous notation of “account in dispute” from a tradeline reported on her credit files. The Department moved to dismiss, arguing, among other things, that it could not be sued for damages under the FCRA “because Congress has not waived sovereign immunity with respect to that statute.”
The court, disagreed, pointing out that while the question of whether sovereign immunity is waived under the FCRA “has generated a circuit split,” the “authority finding that the FCRA waives sovereign immunity is more persuasive than the authority supporting the contrary view.” After examining the statute, the court noted that the FCRA defines a “person” to include a “government or governmental subdivision or agency,” and pointed out that the term “person” appears in other FCRA provisions cited within the plaintiff’s lawsuit. As an example, the court referenced Section 1681n(a), which states: “Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer.” The court also determined that the waiver of sovereign immunity “is sufficiently explicit” in Section 1681u of the FCRA.
On May 11, the U.S. District Court for the Central District of California obtained two additional judgments in an action by the CFPB against a mortgage lender and several related individuals and companies (collectively, “defendants”) for alleged violations of the Consumer Financial Protection Act (CFPA), Telemarketing Sales Rule (TSR), and Fair Credit Reporting Act (FCRA). These are the latest judgments reached with defendants in the ongoing litigation. (See InfoBytes coverage on previously announced settlements here, here, here, and here.)
As previously covered by InfoBytes, the Bureau filed a complaint in January 2020 claiming the defendants violated the FCRA by, among other things, illegally obtaining consumer reports from a credit reporting agency for millions of consumers with student loans by representing that the reports would be used to “make firm offers of credit for mortgage loans” and to market mortgage products, but instead, the defendants allegedly resold or provided the reports to companies engaged in marketing student loan debt-relief services. The defendants also allegedly violated the TSR by charging and collecting advance fees for their debt-relief services. The CFPB further claimed that the defendants violated the TSR and CFPA when they used telemarketing sales calls and direct mail to encourage consumers to consolidate their loans, and falsely represented that consolidation could lower student-loan interest rates, improve borrowers’ credit scores, and change their servicer to the Department of Education.
The May 11 stipulated final judgment entered against a group of corporate defendants, as well as an associated individual, requires the defendants to pay more than $18 million in consumer redress. Payment will be suspended, however, upon satisfaction of certain outlined obligations. The defendants, who neither admitted nor denied the allegations, are also obligated to pay a $125,000 civil money penalty to the Bureau, and are permanently enjoined from offering or providing debt-relief services or from using or obtaining consumer reports for any purpose. Additionally, the individual defendant is banned from using or obtaining benefit from consumer information contained in prescreened consumer reports.
On the same day, a second stipulated final judgment was entered against one of the individual defendants. The judgment requires the individual defendant to pay more than $3.4 million in redress to affected consumers, which will be partially suspended upon satisfaction of certain outlined obligations, along with a $1 civil money penalty. The individual defendant, who also neither admitted nor denied the allegations, is permanently enjoined from offering or providing debt relief services, from participating or engaging in the telemarketing of any consumer financial product or service, or from using or obtaining prescreened consumer reports for any purpose.
On May 13, the U.S. House passed, by a vote of 215-207, H.R. 2547, which would provide additional financial protections for consumers and place several restrictions on debt collection activities. Known as the “Comprehensive Debt Collection Improvement Act,” H.R. 2547 consolidates 10 separate proposed consumer protection bills into one comprehensive package.
Provisions under the package would cover:
- Confessions of Judgment (COJs). The bill would amend TILA and expand the ban on COJs to cover small business owners and merchant cash advance companies.
- Servicemembers. The bill would amend the FDCPA to prohibit debt collectors from threatening servicemembers, including by representing to servicemembers that failure to cooperate will result in a reduction of rank, revocation of their security clearance, or prosecution. Covered debtors would include active-duty service members, those released from duty in the past year, and certain dependents.
- Student Loans. The bill would amend TILA to require the discharge of private student loans in the case of a borrower’s death or total and permanent disability.
- Medical Debt. The bill would amend the FDCPA by making it an unfair practice to “engag[e] in activities to collect or attempt to collect a medical debt before the end of the 2-year period beginning on the date that the first payment with respect to such medical debt is due.” The bill would also amend the FCRA to, among other things, bar entities from collecting medical debt or reporting it to a consumer reporting agency without providing a consumer notice about their rights.
- Electronic Communication. The bill would amend the FDCPA to limit a debt collector from contacting a consumer by email, text message, or direct message on social media without receiving the debtor’s permission to be contacted electronically. It would also prevent debt collectors from sending unlimited electronic communications to consumers.
- Other Debt Provisions. The bill would (i) expand the definition of debt covered under the FDCPA to include money owed to a federal agency, states, or local government; certain personal, family, or household transactions; and court debts; (ii) restrict federal agencies from transferring debt to a collector until at least 90 days after the obligation becomes delinquent or defaults; (iii) require agencies to notify consumers at least three times—with notifications spaced at least 30 days apart—before transferring their debt; and (iv) limit the fees debt collectors can charge.
- Penalties. The bill would require the CFPB to update monetary penalties under the FDCPA for inflation. It would also (i) clarify that courts can award injunctive relief; (ii) cap damages in class actions; and (iii) add protections for consumers affected by national disasters.
- Non-Judicial Foreclosures. The bill would amend the FDCPA to clarify that companies engaged in non-judicial foreclosure proceedings are covered by the statute.
- Legal Actions. The bill would amend the FDCPA to outline requirements for debt collectors taking legal action to collect or attempt to collect a debt, including providing a consumer with written notice, as well as documents showing the consumer agreed to the contract creating the debt, and a sworn affidavit stating the applicable statute of limitations has not expired.
On May 7, the U.S. District Court for the Southern District of New York granted a Missouri-based accounts receivable management company’s (defendant) motion for judgment on the pleadings concerning alleged FDCPA violations. The defendant stated in a collection letter that the plaintiff’s account would be placed with an attorney “for possible legal action” if repayment could not be arranged. The letter also listed two addresses—a physical office address at the top left of the letter and a P.O. Box at the top left of a detachable payment coupon at the bottom of the letter. The plaintiff alleged the letter violated Sections 1692e and 1692g of the FDCPA, claiming that the least sophisticated consumer could read the letter and think that legal action was “imminent,” which would ultimately overshadow the 30-day period to dispute the validity of the debt. The court disagreed, however, concluding that even the least sophisticated consumer would not think the use of the words “if” and “possible” in the letter in question meant that legal action was imminent. Moreover, the court ruled that the inclusion of two different addresses in the letter would not confuse anyone about where to send a dispute notification. Specifically, the validation notice in the letter informed the plaintiff that the defendant would assume the debt to be valid unless its office was notified of a dispute and the letter provided only one office address.
On May 7, the U.S. District Court for the Central District of California entered two default judgments totaling more than $34.1 million in an action by the CFPB against a mortgage lender and several related individuals and companies (collectively, “defendants”) for alleged violations of the Consumer Financial Protection Act (CFPA), Telemarketing Sales Rule (TSR), and Fair Credit Reporting Act (FCRA). Settlements have already been reached with the chief operating officer/part-owner of one of the defendant companies, as well as certain other defendants (covered by InfoBytes here, here, and here).
As previously covered by InfoBytes, the Bureau filed a complaint in 2020 claiming the defendants violated the FCRA by, among other things, illegally obtaining consumer reports from a credit reporting agency for millions of consumers with student loans by representing that the reports would be used to “make firm offers of credit for mortgage loans” and to market mortgage products, but instead, the defendants allegedly resold or provided the reports to companies engaged in marketing student loan debt-relief services. The defendants also allegedly violated the TSR by charging and collecting advance fees for their debt-relief services. The CFPB further claimed that the defendants violated the TSR and CFPA when they used telemarketing sales calls and direct mail to encourage consumers to consolidate their loans, and falsely represented that consolidation could lower student-loan interest rates, improve borrowers’ credit scores, and change their servicer to the Department of Education.
The May 7 default judgment entered against the student loan debt-relief companies requires the collective payment of more than $19.6 million in consumer redress and more than $11.3 million in civil money penalties to the Bureau. The companies are also permanently enjoined from offering or providing debt-relief services or from using or obtaining consumer reports for any purpose. Moreover, the companies and any associated individuals may not disclose, use, or benefit from consumer information contained in or derived from prescreened consumer reports for use in marketing debt-relief services.
A second default judgment was entered the same day against one of the individual defendants. The judgment requires the individual defendant to pay a more than $3.2 million civil money penalty and permanently enjoins him from providing debt relief services or from using or obtaining prescreened consumer reports for any purpose.
- Daniel R. Alonso to moderate an interactive roundtable at the Latin Lawyer and GIR Connect: Anti-Corruption & Investigations Conference
- APPROVED Checkpoint Webcast: You have license renewal questions, we have answers
- Jonice Gray Tucker to discuss “Fintech trends” at the BIHC Network Elevating Black Excellence Regional Summit
- Jeffrey P. Naimon to discuss "Truth in lending” at the American Bar Association National Institute on Consumer Financial Services Basics
- Daniel R. Alonso to discuss anti-money-laundering at FELABAN Spanish-language webinar “Perspective for banks: LAFT, FINCEN, OFAC, Cryptocurrency”
- Daniel R. Alonso to discuss "What’s new in BSA/AML compliance?" at the Institute of International Bankers Regulatory Compliance Seminar
- Jon David D. Langlois to discuss "Regulatory update: What you need to know under the new boss; It won’t be the same as the old boss" at the IMN Residential Mortgage Service Rights Forum (East)
- Benjamin B. Klubes to discuss “Creating a Fantastic Workplace Culture”
- John R. Coleman and Amanda R. Lawrence to discuss “Consumer financial services government enforcement actions – The CFPB and beyond” at the Government Investigations & Civil Litigation Institute Annual Meeting
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute
- Jonice Gray Tucker to discuss “Regulators always ring twice: Responding to a government request” at ALM Legalweek