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Fair Credit Reporting: 4.7.2.4 Notice of Reinsertion

Finally, before previously-deleted information is reinserted into a consumer’s file, the CRA must notify the consumer.1779 Notice of the reinsertion must be prompt, within five business days, and must be in writing, or, if authorized by the consumer for this purpose, by any other means available to the CRA.

Separately, or together, but also within the same five-day period, the CRA must provide a written statement that:

Fair Credit Reporting: 4.7.3.1 What Constitutes Reinsertion

While the reinsertion of previously deleted account data is one of the most common and frustrating problems faced by consumers, little treatment has been given to this problem in the case law. To the extent that courts have dealt with this issue head on, they have taken a far narrower view of the requirements of the FCRA relating to reinsertion than would be necessary to properly address consumer problems.

Fair Credit Reporting: 4.7.3.2 Strategies for Litigating Reinsertion Cases

While many consumers may easily recognize items that have been reinserted into the consumer report, the courts have yet to allow juries to determine whether such reinsertions were reasonable. Therefore, before commencing litigation, a practitioner should prepare the case by developing a discovery and litigation plan aimed at determining what information was available to the CRA and what steps were taken to utilize this information.

Fair Credit Reporting: 4.8.1.1 Generally

The FCRA provides that if reinvestigation does not resolve the dispute, the consumer may file a brief statement setting forth the nature of the dispute.1789 This right is independent of all other rights under the FCRA, including its reinvestigation provisions.1790 If a consumer has filed a statement of dispute,1791 the CRA is required, in any subsequent consumer report concerning the consumer, to clearly note that the consumer disputes the in

Fair Credit Reporting: 4.8.2 Other Notations of Dispute; Fraud and Military Alerts

There is also a second kind of consumer dispute which must be noted by the CRA. If the consumer has disputed with a creditor/furnisher the accuracy of an item of information, either pursuant to the FCRA1819 or another consumer statute,1820 the creditor/furnisher is required to note the consumer’s dispute in its report to the CRA. The CRA in turn should, as a matter of accuracy, note the dispute in its own report.

Fair Credit Reporting: 4.8.3 Consumer Explanations for Adverse Information

The FTC Staff Summary suggests that a CRA need not accept a consumer’s statement as to extenuating circumstances for not paying a debt, such as a sudden illness or layoff, if the circumstance does not challenge the accuracy or completeness of information relating to that debt.1825 However, the CRA can include such a statement if it wishes, and may also charge a fee for inserting the information.1826 In other words, the FTC Staff Summary implicitly discounts the possibility that a reason for

Fair Credit Reporting: 4.8.4 Consumer Offers of New Information

Earlier informal FTC staff interpretations would allow consumers to add, at no additional charge, new information to their file unrelated to any existing item in the file.1833 Since CRAs often obtain credit account information only from information furnishers who subscribe to that particular CRA, a consumer’s file often does not include relevant information if the creditor did not report to that CRA.

Fair Credit Reporting: 4.9.1 Consumer Request for Notification

Following the deletion of information from the consumer’s file pursuant to a reinvestigation or following the consumer’s filing of a statement of dispute, the consumer can request that the consumer reporting agency provide notice to past recipients of the consumer’s report.1840 The notice indicates the items that were deleted, the consumer’s statement, or a codification or summary of that statement.1841

Fair Credit Reporting: 4.9.3 Payment for Notification

CRAs cannot impose a charge to provide the notice to past recipients following the deletion of information from the consumer’s file or the consumer’s filing of a statement of dispute,1859 but only if the consumer acts in a timely fashion.1860 The consumer must designate the past users to receive the notice within thirty days of being notified of the conclusion of the reinvestigation.1861

Fair Credit Reporting: 4.2.4.1.2 When is information misleading and thus inaccurate

If information is ambiguous and susceptible to two meanings, one of which is misleading, the report may be deemed inaccurate.173 A criminal background report might be technically accurate when it uses the word “pending” to indicate that the CRA’s investigation has not been completed, but can mislead users into believing that criminal charges are the item “pending” against the consumer.174 In determining whether reported information is misleading, the Third Circuit has h

Fair Credit Reporting: 8.5.5 Enforcement of Right

The 2003 FACTA amendments to the FCRA appear to have eliminated the ability of consumers to privately enforce the adverse action notice requirements of the FCRA. As part of those amendments, Congress added the following language to 15 U.S.C. § 1681m:

(8) Enforcement

Fair Credit Reporting: 3.6.1.4 OFAC Alerts

Yet another example of a failure to provide all information in a consumer’s file (albeit perhaps difficult to privately redress) is Trans Union policy of not including information from the U.S.

Fair Credit Reporting: 3.6.1.5 Disclosure of Previously Reported Information

Consumer reports show the present status of a consumer’s file, and do not disclose the information that may have been provided to a user in the past. An important issue is whether CRAs are in fact required to disclose the content of such prior reports, because it is the prior reports that form the basis of a user’s adverse action.

Fair Credit Reporting: 3.6.1.6 Disclosure of Other Persons in Consumer’s File

The disclosure right is limited to information in the CRA’s files “on the consumer.”523 The consumer has no right to information on other individuals. However, if information that relates to other individuals is retained in a consumer’s files, that must be disclosed given the requirement that a “CRA must disclose all items in the consumer’s file.”524

Fair Credit Reporting: 3.6.1.1 Statutory Standard

With a limited number of exceptions, the FCRA requires that all information in the consumer’s file at the time of the consumer’s request must be provided to the consumer.466 The Act explicitly requires CRAs, upon request of the consumer, to “clearly and accurately disclose . . .

Fair Credit Reporting: 4.4.7.1 Generally

The FCRA mandates specific procedures when a CRA furnishes “items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer’s ability to obtain employment.”1065 This requirement applies only when the consumer report is furnished for employment purposes1066 and the public record information is adverse.

Fair Credit Reporting: 4.4.7.2 Election to Notify Consumer of Release of Public Record Information

The first option that a CRA can choose is to notify the consumer, at the time that public record information is released, that the CRA is furnishing public record information to a user, together with the name and address of the person to whom such information is being released.1081 This option is necessary for CRAs that generate their employment reports from a preexisting database rather than collect the data from court records on an as-needed basis.

Fair Credit Reporting: 4.4.7.3 Election to Establish Strict Procedures for Complete and Up-to-Date Public Record Information

The second option a CRA can elect is to maintain strict procedures to ensure that the public record information is both complete and up to date.1089 While section 1681k does not specifically use the term “accuracy,” some, but not all, courts have held that inaccurate information violates this section.1090 Compliance with this section is in addition to compliance with section 1681e(b).1091 Whether a defendant followed strict procedures is gene

Fair Credit Reporting: 4.4.7.4 Exemption for National Security Investigations

The procedures required for the reporting of adverse public record information for employment purposes does not apply in the case where a United States agency or department seeks the report, if the head of that agency or department makes a written finding.1116 The finding must state that the report is relevant to a national security investigation, the investigation is within the jurisdiction of the agency or department, and there is reason to believe that one of six conditions will occur, if the exemption does not apply.

Fair Credit Reporting: 4.3.5.2 How Errors Occur in Public Record Information

There are several ways that public record information in a consumer’s file can end up with errors. Just like information from furnishers, the source public record could itself contain an error.466 Consumer reporting agencies are not likely to discover and correct such errors on their own. In addition, errors are sometimes made by CRAs (or the companies they hire) in copying information from public records.