Skip to main content

Search

Fair Credit Reporting: 4.2.4.3 Technical Accuracy Defense Is Contrary to the Intent and Legislative History of the FCRA

Ironically, the phrase “technically accurate” was first used as an example of the abuses to be covered by the FCRA. Introducing the bill which was to become the FCRA, Senator Proxmire noted: “In addition to supplying inaccurate information, a second major abuse of credit reporting agencies is the dissemination of irrelevant information—that is, the information may be technically accurate but it may not serve any useful purposes.”214

Fair Credit Reporting: 4.2.4.4 Technical Accuracy Defense Is Contrary to FTC Interpretations of the FCRA

The cases permitting a “technically accurate” standard also make no sense when taken in conjunction with the FTC’s position that CRAs must utilize procedures to ensure that information is complete and must correct incomplete information if disputed.216 The same incompleteness should also lead to an inaccuracy finding triggering the consumer’s ability to challenge the CRA procedures.217

Fair Credit Reporting: 4.2.5 Information Must Relate to the Consumer

Information that does not pertain to the consumer upon whom a report is furnished is not accurate under the FCRA.224 A consumer report is one which “bear[s] on a consumer’s credit worthiness, credit standing, credit capacity,” and other individualized characteristics and which is to be used “as a factor in establishing the consumer’s eligibility” for credit, employment, and other permissible purposes.225 The CRA must follow procedures to “assure maximum possible accuracy of the

Fair Credit Reporting: 4.2.6 Consumer Reporting Agency May Not Report Unverifiable Information

While a CRA is entitled to presume that its furnisher is otherwise a reliable source, once it determines that a credit item cannot be “verified,” it is no longer entitled to report it.231 Typically, CRAs hold fast to the belief that they are entitled to report any information that cannot be conclusively determined to be inaccurate. This presumption is completely contrary to that demanded by the FCRA.

Credit Discrimination: 4.4.3 Credit Reporting Agency Files

Information collected on an applicant by a credit reporting agency is useful for several reasons. If information from a credit reporting agency is given by the creditor as the grounds for denial of credit, it is useful to check to see if the creditor in fact contacted the agency before denying credit and what the applicant’s record indicates. In any case, as it is likely that the creditor will bring up that record as a defense,191 it will be important for the applicant to know what the record contains.

Fair Credit Reporting: 9.2.2.1.2 Appropriate proof of identity

A prerequisite to obtaining any of the three alerts discussed below is that the consumer must provide the CRA with “appropriate proof of identity.”49 Regulation V requires CRAs to develop and implement “reasonable requirements” to verify identity.50 In developing these requirements, the CRAs must:51

Fair Credit Reporting: 9.2.3.2 Placement of a Security Freeze; Confirmation

Upon a consumer’s direct request,109 and after the nationwide CRA receives “proper identification,”110 a nationwide CRA must freeze access to the consumer’s report at no charge.111 A security freeze means, for purposes of the FCRA, “a restriction that prohibits a consumer reporting agency from disclosing the contents of a consumer report . . . to any person requesting [it].”112

Fair Credit Reporting: 3.4.4 Free Credit Monitoring for Active Duty Military Consumers

Despite well-documented problems with credit monitoring, Congress amended the FCRA in 2018 to require the nationwide consumer reporting agencies to provide a free version of the product to active duty military consumers.364 The Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA) of 2018 requires the nationwide CRAs to provide a “free electronic credit monitoring service” to any consumer who provides appropriate proof that they are an active duty military consumer,365 which

Fair Credit Reporting: 3.5.2.4 Form of the Request

A consumer’s inquiry should clearly be a request; a casual inquiry to a CRA’s telephone receptionist asking generally what is going on is not a proper request for disclosure.399 However, the request need not be specifically stated as a request for a report or a “file disclosure.”400 For example, a request to a CRA for an explanation as to why a user has taken an adverse action may be enough to constitute a request for disclosure.401

Consumer Class Actions: 10.7.2.1 Generally

There is disagreement among federal courts on the criteria that control whether an issue class can be certified under Rule 23(c)(4) in cases seeking certification under Rule 23(b)(3). The main conflict among courts is how the predominance and superiority requirements of Rule 23(b)(3) apply to issue classes. Four circuits—the Second, Fourth, Sixth, and Ninth—apply the Rule 23(b)(3) predominance and superiority prongs to the common issues that have been identified for class treatment under Rule 23(c)(4).

Bankruptcy Basics: Statement of Residential Tenants.

If the debtor rents their residence, they should check the box indicating that. If no court judgment for possession has been entered against the debtor before the bankruptcy petition is filed, the debtor can then respond to the second portion of this question by checking the box indicating “no.” If a court judgment for possession has been entered against the debtor before the petition is filed, the debtor should check the second “yes” box in this section and must also submit the separate form entitled Initial Statement About an Eviction Judgment Against You (Official Form 101A).

Bankruptcy Basics: Statistical/Reporting Information

Part 6 of the petition asks questions for statistical and reporting purposes. The first question is whether the debtor’s debts are primarily consumer debts. Section 707(b) and the “means test” apply only to debtors whose debts are primarily consumer debts. If the debtor does not have primarily consumer debts and checks the box indicating that the debts are primarily business debts, the debtor may submit Official Form 122A-1Supp and check the appropriate box in Part 1 of that form. In the sample case, the majority of Ms.

Bankruptcy Basics: SECTION 342(B) NOTICE

Section 342(b) requires the clerk of the bankruptcy court to give each consumer debtor a notice prior to the filing of the petition describing the chapters of the Bankruptcy Code under which the debtor may proceed, the services of credit counseling agencies, and the possible consequences of bankruptcy fraud. However, because section 521(a)(1)(B)(iii) requires the debtor’s attorney to file a certification that the attorney delivered the notice to the debtor, a represented debtor will receive the notice from their attorney rather than from the court.

Bankruptcy Basics: In General

Schedules A and B used to be separate schedules for real and personal property, but they were merged into one form. The first portion, formerly Schedule A, is a list of the debtor’s real property. In this portion of the schedule, the debtor must list all legal, equitable, and future interests in real property. If the debtor has no such interests, the schedule should state “none.” The debtor’s interest in an executory contract or unexpired lease involving real property should be listed on Schedule G, rather than here.

Bankruptcy Basics: Claims Against Third Parties

If the debtor has any potential causes of action, it is very important to list them both on Schedule A/B and on Schedule C (if an exemption can be claimed). The potential claims should be listed even if the debtor expects only to use the claim defensively (for example, as an objection or by way of recoupment to a creditor’s proof of claim). The debtor’s failure to list causes of action or claims may preclude the debtor from pursuing them after bankruptcy under the doctrines of standing and judicial estoppel.

Bankruptcy Basics: Other Contingent and Unliquidated Claims

Any other personal property not listed earlier should be listed in this category. For example, wages garnished prepetition should be listed here on Schedule A/B and exempted on Schedule C if an exemption is available. Wages in excess of $600 that were garnished in the ninety-day period before the bankruptcy filing, such as in the sample case, may be recovered as a preference pursuant to section 547.

Bankruptcy Basics: SCHEDULE C—EXEMPTIONS

Schedule C is the debtor’s list of property claimed as exempt. The goal in completing this schedule is to exempt as much as possible—preferably all—of the client’s property. In the case of most low-income clients that is generally not difficult. The items listed in Schedule C should be checked against Schedule A/B to be sure that nothing has been inadvertently omitted and that the current market values listed for the items are identical. Exemptions claimed on Schedule C shall be allowed unless a party in interest timely objects and the objection is granted by the court.

Student Loan Law: 11.4 Other Profession-Related Discharges

In addition to the Public Service Loan Forgiveness and Teacher Loan Forgiveness programs, there are several smaller, profession-related discharge programs. In addition to the programs described in this section, there are a number of profession-related discharge programs for Perkins Loans only, which are discussed at § 11.5, infra.

Consumer Bankruptcy Law and Practice: 12.3.6.1 Priority Claims

One group of unsecured claims must normally be paid in full through the chapter 13 plan. Section 1322(a)(2) of the Code requires that the plan provide for payment in full of all claims entitled to priority under Code section 507(a), unless the holder of the claim agrees otherwise.

A priority creditor who fails to object to a plan proposing less than full payment may be deemed to have agreed to it.277 In any case, if such a plan is confirmed, the creditor is bound by it.278

Bankruptcy Basics: SCHEDULE E/F—UNSECURED CREDITORS

Schedule E/F is broken down into two parts. Part 1 lists the different categories of debts that may have priority under the Bankruptcy Code, such as taxes and domestic support obligations. Part 2 is for creditors with nonpriority unsecured claims. Boxes on the official form should be checked to designate which types of priority debt the debtor has or to note that the debtor has no priority obligations.

Bankruptcy Basics: SCHEDULE G—EXECUTORY CONTRACTS AND UNEXPIRED LEASES

The debtor must list on Schedule G any unexpired leases and executory contracts. This schedule is designed primarily to put the trustee on notice of leases or other executory contracts that might be assumed or rejected because of their potential benefit or cost to the estate. An executory contract is broadly defined as one for which significant aspects of performance remain due on both sides. An unexpired lease is one that has not yet terminated according to its terms. If the debtor has no unexpired leases or executory contracts, the debtor should check the applicable box.

Consumer Bankruptcy Law and Practice: 12.8.4 Proof of Insurance

Under section 1326(a)(4), a debtor who is retaining personal property subject to a lease or that secures a purchase money claim is required to provide the lessor or creditor reasonable evidence of the maintenance of any required insurance coverage. Normally, such creditors or lessors already know if insurance lapses, as they are named as loss payees in the policy. Only when insurance has lapsed will such evidence be important to creditors or lessors.

Bankruptcy Basics: Schedule J—DEBTOR’S EXPENSES

Schedule J requires information about the expenses of the debtor and the debtor’s family. Many debtors have only a vague idea of what they spend for various items, and have often spent less than necessary for things like home maintenance and clothing because they were trying to make debt payments they no longer will have to make. The debtor’s expenses usually can be estimated, within the limits of realistic planning, in a way that presents the case in a favorable light.