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Fair Credit Reporting: 10.7.5 Affiliate Information Sharing Preemption—§ 1681t(b)(2)

Section 1681t(b)(2) preempts state requirements and prohibitions “with respect to the exchange of information among persons affiliated by common ownership or common corporate control.”527 The preempting provision has an exception for a Vermont statute, as it existed in 1996, that requires a consumer’s consent to obtain a consumer report, unless the report is obtained pursuant to a court order.528

Fair Credit Reporting: 10.7.6 Disclosure Preemption—§ 1681t(b)(3)

Section 1681t(b)(3) preempts state requirements or prohibitions with respect to various disclosures required by sections 1681g(c), 1681g(d), 1681g(e), 1681g(f), and 1681g(g).531 Section 1681t(b)(3)’s preemption provision explicitly preserves California’s532 and Colorado’s533 preexisting disclosure statutes, as in effect on December 4, 2003.

Fair Credit Reporting: 10.7.8.2 Consumer Reporting Agency Provisions That Preempt State Law

Section 1681t(b)(5) references conduct required by a number of FCRA provisions dealing with CRA obligations, and provides that “no requirement or prohibition may be imposed under the laws of any State . . . with respect to the conduct required by” those specific provisions. One provision is section 1681c-1, relating to identity theft prevention, fraud alerts, and active duty alerts. In general, the provision requires more of nationwide CRAs than other CRAs, imposing few duties on resellers and non-nationwide CRAs.

Fair Credit Reporting: 10.7.8.3 User Provisions That Preempt State Law

Section 1681t(b)(5) refers to a number of user provisions that preempt state laws that regulate the same conduct. One provision is section 1681c-1, relating to identity theft prevention, fraud alerts, and active duty alerts, requiring specific conduct of users when they are alerted to potential identity theft.

Fair Credit Reporting: 10.7.8.4 Furnisher Provisions That Preempt State Law

Section 1681t(b)(5) refers to a number of furnisher provisions that preempt state laws that regulate the same conduct. One such provision is section 1681m(f). Where identity theft leads to an FCRA block on the reporting of information about a debt, and the CRA so notifies the furnisher, the furnisher cannot sell or collect on that debt.

Fair Credit Reporting: 10.7.8.5 Debt Collector Provisions That Preempt State Law

Section 1681t(b)(5) refers to one debt collector provision that preempts state laws that regulate the same conduct. Section 1681m(g) requires certain conduct from a debt collector collecting on a debt owed a third party, after the collector has been notified that information related to the debt may be fraudulent because of identity theft. Once so notified, the debt collector must pass this information on to the party owed the debt.

Fair Credit Reporting: 10.7.8.6 Preemption by Provision Relating to Those Accepting Credit or Debit Cards

Section 1681t(b)(5) refers to section 1681c(g), that requires conduct of those accepting credit or debit cards, and that thus preempts state laws that regulate the same conduct. The provision requires the business to print out no more than the last five digits of the account number. A number of states enacted similar legislation,581 with remedies ranging from deceptive trade practices act actions to criminal penalties.

Fair Credit Reporting: 13.1 Introduction

Although private enforcement has long been the primary method of assuring compliance with the FCRA, public enforcement also plays an important role. Public enforcement is particularly valuable where there is no private right of action, as is the case with several provisions of the FCRA,1 particularly with respect to furnishers of information.2 Additionally, several of the FCRA’s provisions may be much harder to enforce privately after the Supreme Court’s decision in TransUnion v.

Fair Credit Reporting: 10.1 Introduction

This chapter focuses on consumer claims relating to consumer reporting injury. Legal claims are, of course, available under the Fair Credit Reporting Act (FCRA). The requirements imposed on consumer reporting agencies (CRAs), users, and furnishers are examined in detail in other chapters. This chapter summarizes which FCRA requirements can be enforced directly by consumers under private rights of action and discusses circumstances when “reasonable procedures” are relevant to such claims.

Fair Credit Reporting: 10.2.1.1 Generally

Other chapters of this treatise discuss in detail the requirements imposed on CRAs, users, and furnishers by various provisions of the FCRA. Unfortunately, not all of these requirements can be enforced by consumers.

Fair Credit Reporting: 11.1.1 Litigation Goals

Once the theory of the case and the nature of the claims have been decided upon,1 the practicalities of litigation must be considered. This chapter covers everything from selection of the parties and court to remedies following a successful court challenge to consumer reporting practices.

Fair Credit Reporting: 11.1.2 Case Selection

The odds of prevailing are best if the facts strongly point to a clear injustice: where common sense indicates that there has been a violation and the result emerges without any significant weighing or balancing of other factors.

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.

Bankruptcy Basics: Getting Started

This Appendix contains sample consumer bankruptcy pleadings and other forms. Most of the forms provided here are limited to chapter 7 bankruptcy practice.

Bankruptcy Basics: STATEMENT OF INTENTION

Section 521(a)(2) requires the debtor in a chapter 7 case to file a statement of intention (Official Form 108) with respect to property securing debts and with respect to personal property leases. For property securing debts, the debtor may indicate that the debtor intends to redeem the property, surrender the property, or reaffirm the debt. Redemption allows a chapter 7 debtor to eliminate a creditor’s lien by paying the creditor the value of the collateral securing the lien. As discussed below, only personal property may be redeemed.

Bankruptcy Basics: Avoidance Procedure.

The lien avoidance procedure is generally initiated by the filing of a motion. Bankruptcy Rule 4003(d). Motions to avoid liens may be brought in both chapter 7 and chapter 13 cases, though in chapter 13 cases it is now more common to include a request to avoid a lien as part of the plan. If a lien is avoided in a chapter 13 case, the claim can then be treated as an unsecured claim under the debtor’s plan.

Bankruptcy Basics: Disclosures Concerning Bankruptcy Process.

To the extent not covered by the section 342(b)(1) notice, and within three days after the agency first offers to provide bankruptcy assistance services to an assisted person, section 527(a)(2) states that the agency must provide a clear and conspicuous notice that:

Bankruptcy Basics: Written Contract Under Section 528(a)

A debt relief agency must execute a written contract with an assisted person within five days after the date the agency first provides bankruptcy assistance to the assisted person, and prior to filing a petition. 11 U.S.C. § 528(a)(1). The written contract must explain, clearly and conspicuously, the services that will be provided and the fees, charges, and terms of payment. The assisted person must be provided a copy of the executed and completed contract.

Bankruptcy Basics: Name

Part 1 of the petition centers on the debtor’s identity. It begins with the debtor’s name, and the petition should also include all other names used by the debtor within eight years before filing the petition, such as trade names, business names, married names, and maiden names. This information, together with the other identifying information on the petition, helps creditors to identify the debtor when they receive notice of the bankruptcy filing, to comply with the automatic stay, and to file accurate proofs of claim.

Bankruptcy Basics: PAYMENT ADVICES

Section 521(a)(1)(B)(iv) requires the debtor to file copies of all payment advices or other evidence of payment received from employers within sixty days before the filing of the petition. Bankruptcy Rule 1007(b)(1)(E) requires that all but the last four digits of the debtor’s Social Security number must be redacted from these documents before filing. If a debtor has not received any payment advices or documentation of payment from an employer during the relevant period, the Bankruptcy Code and Rules do not require that anything be filed.

Bankruptcy Basics: What About Reaffirming Credit Card Debt?

It is almost never a good idea to reaffirm a credit card debt, even store credit card debts that may be secured. Some creditors offer debtors continuing use of the credit card after bankruptcy, although with a limited credit line, if they reaffirm the debt. Such offers to reaffirm may seem attractive at first. However these offers in most cases are a bad deal because the debtor will often pay more in finance charges to repay the reaffirmed debt than they will get in new credit.