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Fair Credit Reporting: 11.2.1.1 Consumers Generally

The FCRA provides that any person who fails to comply with any FCRA requirement with respect to any consumer is liable to that consumer.17 A consumer is broadly defined as any individual.18 Consequently, any individual can bring an FCRA action where an FCRA requirement has been violated “with respect to” that individual. There is no requirement that the plaintiff have “clean hands” or that the action be in the public interest.19

Fair Credit Reporting: 11.2.1.2 Indirect Injury

A consumer may have standing to sue even where the report at issue is on the consumer’s spouse, not on the consumer, and contains no information about the consumer, provided that the information in the file adversely affects the consumer.22 A wife, for example, could sue where information in the husband’s report impaired the wife’s ability to obtain financing on jointly owned property.23 Similarly, a spouse had standing to assert a claim against a furnisher when her interests were adversely affe

Fair Credit Reporting: 9.2.6.1.1 Introduction

The FCRA includes several provisions that seek to protect sensitive consumer information, thus decreasing the chance of identity theft. Merchants that accept credit cards or debit cards202 must truncate credit and debit card numbers on electronically printed receipts, and are prohibited from printing the card’s expiration date.

Fair Credit Reporting: 10.6.2 State Deceptive Practices Statutes

Every state has a deceptive practices statute that, with few exceptions, provides important consumer remedies for marketplace misconduct.244 Remedies, depending on the state, might include attorney fees, actual damages, treble damages, punitive damages, and/or statutory damages for deceptive conduct. In addition, many of these statutes also prohibit unfair or unconscionable conduct, and not just deceptive conduct.

Fair Credit Reporting: 10.6.3 State Identity Theft Laws

Many states have enacted criminal and civil laws that target identity theft.256 As discussed below in detail in § 10.7, infra, however, the FCRA specifically preempts states from imposing any requirement or prohibition with respect to the “conduct required” by many of the provisions of the FCRA aimed at preventing and reme

Fair Credit Reporting: 10.7.2.1 A Roadmap

The general FCRA rule is that state law is not preempted unless it is inconsistent with the FCRA or unless it is explicitly preempted by the FCRA’s express preemption provision, section 1681t(b).289 Section 1681t(b) states that “[n]o requirement or prohibition may be imposed under the laws of any State” with respect to five different areas:290

Fair Credit Reporting: 10.7.2.2 General Principles of Interpretation

When Congress employs express preemption in a federal act, the scope of the clause depends on its language, along with that of any savings clause in the act.309 When examining an express preemption clause, a court must focus on the plain wording of the clause, because that wording is “the best evidence of Congress’ pre-emptive intent.”310

Fair Credit Reporting: 10.7.2.3 Applicability of Pre-FACTA Case Law to Current FCRA Preemption Provisions

The FCRA’s explicit preemption provisions were due to expire on January 1, 2004,319 but the Fair and Accurate Credit Transactions Act of 2003 (FACTA) removed this sunset clause, thus retaining the earlier preemption language. The FACTA amendments to the FCRA also added new language whereby additional FCRA provisions preempt state law. Case law prior to the FACTA amendments will still be good precedent for the preemption language that has been retained unchanged, but only partially relevant to the new preemption language.

Fair Credit Reporting: 10.2.1.3 FCRA Private Remedy for Furnisher Reinvestigation Obligations in Response to a CRA Request

Creditors, debt collectors, and others who furnish information to CRAs must participate in reinvestigations conducted by the CRAs when consumers dispute the accuracy or completeness of information with the CRA, and must follow certain steps to correct erroneous information.27 There is a FCRA private right of action to sue creditors and other furnishers who fail to comply with these requirements.28

Fair Credit Reporting: 9.1.1 Background

Inaccurate information in a credit history can present serious, if not devastating, problems for a consumer; unauthorized access to a consumer report represents a significant breach of a consumer’s financial privacy. The worst manifestation of these offenses may be when a culprit takes information with malicious intentions for the data. Identity theft has become an alarmingly frequent invasion of privacy.

Fair Credit Reporting: 9.2.1.2 Definition of “Identity Theft”

The FCRA defines “identity theft” as “a fraud committed or attempted using the identifying information of another person.” Regulation V further defines the term to mean “a fraud committed or attempted using the identifying information of another person without authority.”29 Regulation V defines “identifying information” to mean:30

Fair Credit Reporting: 9.2.1.3 CRA Annual Reports to the CFPB

Each nationwide CRA must prepare and submit to the CFPB an annual report summarizing consumer complaints received on identity theft or fraud alerts.42 The CFPB could use this information to produce a nationwide picture of the effect of identity theft on the accuracy and integrity of consumers’ credit files.

Fair Credit Reporting: 9.2.2.1.1 Introduction

The FCRA provides for three varieties of alerts that consumers may add to their files with nationwide CRAs.43 These alerts differ in their initiation requirements, time periods, and demands imposed on users. However, all three alerts require the CRA receiving the alert to refer it to the other nationwide CRAs. In theory, this process allows consumers to issue the alert to all the CRAs with “one call.”

Fair Credit Reporting: 9.2.2.2 Initial Fraud Alerts

With respect to the first type of alert, the FCRA allows consumers who believe that they are or might be victimized by identity theft fraud or any other sort of fraud to require all nationwide CRAs to add a fraud alert to their files simply by calling one such CRA.56 Note that the FCRA provides consumers may seek an initial fraud alert merely upon a “good faith suspicion” that they are about to be victimized by identity theft or other fraud;57 consumers do not need to know definitively that they act

Fair Credit Reporting: 13.4.3.4 Claims Against Users for Impermissible Purpose Under § 1681b

The CFPB took action against a mortgage lender that misused its access to consumer credit reports to unlawfully obtain reports in order to market student loan debt-relief services.183 It also took action against another mortgage servicer and lender who ordered consumer reports to market to existing customers without making a firm offer of credit, which is not a permissible purpose under the FCRA.184

Fair Credit Reporting: 13.4.3.5 Claims Against Users for Failing to Send Adverse Action Notices Under § 1681m

The CFPB has brought actions against users of consumer reports for failing to provide adverse action notices or otherwise comply with section 1681m.191 In one instance, the CFPB alleged that, as a matter of company policy, 1st Alliance denied credit to thousands of consumers based on information in a consumer report or in response to an application, but did not give the consumers an adverse action notice as required under FCRA and ECOA.192 In another case, the CFPB found that between October 201

Fair Credit Reporting: 13.7.3 State Enforcement Powers Against Information Furnishers Are Limited

As mentioned earlier,246 private citizens may not sue furnishers of information for damages resulting from a failure to provide accurate or complete information to CRAs as required by the Act.247 Instead, only public officials or federal or state agencies are permitted to enforce these and other furnisher requirements.248 State officials have authority to seek damages on behalf of state residents for violations of paragraphs (1) through (3) of sect