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Fair Credit Reporting: Section 623(a)(5)

Section 623(a)(5)(A) provides, “A person who furnishes information to a consumer reporting agency regarding a delinquent account being placed for collection, charged to profit or loss, or subjected to any similar action shall, not later than 90 days after furnishing the information, notify the agency of the date of delinquency on the account, which shall be the month and year of the commencement of the delinquency on the account that immediately preceded the action.”

1. RELATION TO OTHER SECTIONS

Fair Credit Reporting: Section 623(a)(6)

Section 623(a)(6) requires furnishers to have reasonable procedures to respond to any notification that they receive from a CRA about an identity theft “block,” and to prevent refurnishing such “blocked” information. It also states that after a consumer has submitted an identity theft report “at the address specified by (the furnisher) for receiving such reports,” the furnisher may not report such information to a CRA unless it “subsequently knows or is informed by the consumer that the information is correct.”

1. RELATION TO OTHER SECTIONS

Fair Credit Reporting: Section 623(a)(7)

Section 623(a)(7) requires a “financial institution” that regularly reports negative information to nationwide CRAs to provide one clear and conspicuous written notice of that practice to consumers, no later than 30 days after first reporting such information. After providing the notice, the furnisher may provide further negative information “with respect to the same transaction, extension of credit, account, or customer without providing additional notice to the customer.” The Federal Reserve Board was assigned to provide a brief model form for this purpose.

Fair Credit Reporting: Section 623(a)(8)

Section 623(a)(8) allows consumers to directly dispute with furnishers the accuracy of information supplied to CRAs, in accord with rules required to be promulgated by the Commission and Federal financial agencies. (Starting July 21, 2011, the Bureau will assume rulemaking authority under this section.) It requires the furnisher to investigate good faith disputes, considering “all relevant information” submitted by the consumer.

Fair Credit Reporting: Section 623(b)

Section 623(b) requires that a furnisher that receives a dispute notice from a CRA must investigate the disputed information, review all relevant information provided by the CRA, and report the results of the investigation to the CRA. If the furnisher finds that the information is incomplete or inaccurate, it must report those results to all nationwide CRAs to which it furnished the information.

Fair Credit Reporting: Section 626—Disclosures to FBI for Counterintelligence Purposes 15 USC 1681u

Section 626 requires CRAs to provide consumer reports or specific information in their files when a certain supervisory official of the Federal Bureau of Investigation certifies in writing that the report or information “is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities. . . .” It states that the CRA (and its personnel) may not disclose “in any consumer report, that the FBI has sought or obtained” such information or report.

Fair Credit Reporting: Section 627—Disclosures to Governmental Agencies for Counterterrorism Purposes 15 USC 1681v

Section 627 provides for CRAs to provide all information in their files “to a government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism when presented with a written certification by [a certain supervisory level official of] such government agency that such information is necessary for the agency’s conduct or such investigation, activity or analysis.” It states that the CRA (and its personnel) may not “disclose to any person, or specify in any consumer report, that a government agency has sou

Fair Credit Reporting: Section 628—Disposal of Records 15 USC 1681w

Section 628 directs the Commission and other federal agencies to prescribe regulations “requiring any person that maintains or otherwise possesses consumer information, or any compilation of consumer information, derived from consumer reports for a business purpose to properly dispose of any such information or compilation.”

1. IMPLEMENTING RULES

Fair Credit Reporting: Section 629—Corporate and Technological Circumvention Prohibited 15 USC 1681x

Section 629 required the Commission to “prescribe regulations to prevent a consumer reporting agency from circumventing or evading treatment” as a nationwide CRA. Starting July 21, 2011, the Bureau will assume rulemaking authority under this section.

1. IMPLEMENTING RULES

The Commission issued rules prohibiting CRAs, including newly-formed firms, from evading treatment as a nationwide CRA (16 CFR 611), as required by the provision. See 69 Fed. Reg. 29061, 29063 (May 20, 2004) and 69 Fed. Reg. 8532, 8533 (Feb. 24, 2004).

Fair Credit Reporting: 16.4.3.2 Required Disclosure

A mortgage lender subject to this requirement must provide a disclosure similar to the generic credit score disclosure, i.e., a credit score, range of possible scores, associated key factors, etc.149 The lender must disclose either the score obtained from a CRA or a score developed and used by the lender.150 The FCRA does not set forth a specific timeframe for the disclosure to be made, but it must be made as soon as reasonably practicable.151

Fair Credit Reporting: 16.4.3.3 Enforcement of Right and Preemption

The lender is only liable for failure to make disclosures concerning mortgage score, not for the substance of the score or disclosures.160 Generally, FCRA claims must be brought within two years after discovery of the violation, but no later than five years after the violation;161 however, for the mortgage score disclosures, courts have held that the statutory period presumptively runs for two years from the date the loan transaction was consummated because, by that point, the borrower should kn

Fair Credit Reporting: 16.4.5.2 VantageScore; In-House Educational Scores

The Big Three nationwide CRAs collectively offer their own scoring product to lenders, called VantageScore.174 VantageScore has four generations of models.175 One difference with VantageScore is that the same scoring model is used by each of the three nationwide CRAs, so that a consumer will have the same score from each CRA if all of the data is the same.176

Fair Credit Reporting: 16.4.5.3 FICO Variations

FICO has numerous variations, with twenty-eight of them being commonly used by lenders.180 The variations are due to several factors. First, FICO offers has several generations of scoring models, including “classic” FICO, FICO 8, FICO 9, and FICO 10/10-T.

Fair Credit Reporting: 16.5.2.1.2 Payment history

This category includes information about late payments, defaults, collections, repossessions, bankruptcies, and judgments. This is the most important factor in a credit score. A single thirty-day late payment can lower a good credit score (e.g., 780) by 90 to 110 points.211 It can lower a mid-range credit score (e.g., 680) by 60 to 80 points, or well into the poor credit risk range.212

Fair Credit Reporting: 16.5.2.1.3 Amounts owed: credit utilization ratio

This category includes information on the amount owed by a consumer on each account as well as the total credit limit permitted for that account. Consumers are considered ideal if they have only utilized about ten to twenty percent of their available credit limit. The highest scores go to those who use on average a mere six percent of the credit available to them.235