Skip to main content

Search

Fair Credit Reporting: 4.7.2.3 Furnisher Certification of Reinserted Information

Before information is reinserted into a consumer’s file, the furnisher of the information must certify that the information is accurate and complete.1777 The form of certification is not specified and has not been considered by the courts.1778 To be meaningful, the certification must reflect an individualized, separate determination by the furnisher that the particular information is both accurate and complete.

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

Bankruptcy Basics: Transfer Avoidance

Section 522(h) grants the debtor the power to avoid many types of prebankruptcy transfers of exempt property. The power to avoid transfers is expansive due, in part, to the broad definition of the word transfer, which includes any lien, execution sale, setoff, or other mode of disposing of or parting with an interest in property, whether voluntary or involuntary. 11 U.S.C. § 101(54).

Bankruptcy Basics: Household Goods.

Another potent avoiding power is provided by section 522(f)(1)(B)—the power to avoid nonpossessory, nonpurchase-money security interests in the following items:

Consumer Bankruptcy Law and Practice: 11.6.1.3.1 Introduction

In addition to section 1322(b)(2) and adequate protection, a third important factor in determining whether the court will approve the modification of a secured creditor’s rights is compliance with section 1325(a)(5). Section 1325(a) provides that the court shall approve a plan if certain standards303 are met. One of these is that of section 1325(a)(5), which states that as to each allowed secured claim provided for by the plan one of the following conditions should be met:

Bankruptcy Basics: Creditor Consent or Surrender of the Collateral.

The first and third of these options are fairly simple. If the creditor consents to modification of its rights, by negotiated settlement or otherwise, there is no reason for the court to be concerned and the plan shall be confirmed. A number of courts have held that a secured creditor who does not object to a plan may be deemed to have accepted it. If the debtor surrenders the collateral to the creditor then that creditor, in effect, is no longer a secured creditor after the creditor liquidates the collateral, but only an unsecured creditor with respect to whatever debt remains.

Bankruptcy Basics: The “Hanging Paragraph”

The language at the end of section 1325(a) provides that, for purposes of section 1325(a)(5), section 506 shall not apply to certain claims. Because the paragraph is unnumbered, it is frequently referred to as the “hanging paragraph.” The claims encompassed by the hanging paragraph are two types of purchase money security interests. The first type is a purchase money security interest for a debt incurred within 910 days preceding the filing of the petition, if the collateral for the debt consists of a motor vehicle that was acquired for the personal use of the debtor.

Bankruptcy Basics: Curing Mortgage Arrears

In a typical chapter 13 case filed to stop a mortgage foreclosure, the primary objective of the plan is to cure the mortgage default. Under section 1322(b)(5) a mortgage arrearage, including reasonable prepetition foreclosure expenses, can be cured within a “reasonable time.” Courts have generally construed this language to mean that a debtor may cure defaults over the duration of the chapter 13 plan, which may be as long as three to five years. Depending upon the mortgage contract language and applicable nonbankruptcy law, the plan may need to provide for interest on the arrearage.

Bankruptcy Basics: Asserting Nonbankruptcy Claims and Defenses

As part of the bankruptcy claim determination process consumer claims and defenses may be asserted in response to a creditor’s proof of claim. 11 U.S.C. §§ 502, 506; Bankruptcy Rule 3007. As the bankruptcy court generally is more familiar with federal consumer protection and state lending laws than are state courts, it may be a favorable forum for litigating consumer defenses to a creditor’s claim, providing a much quicker resolution than state court.

Consumer Bankruptcy Law and Practice: 9.3.1 Overview

The duration of the automatic stay can vary significantly depending upon the circumstances. Theoretically it can be ended almost immediately, if the circumstances require, by the court granting relief to affected parties.

Bankruptcy Basics: Overview.

The Bankruptcy Code contains a number of restrictions on repeat bankruptcy filings. These provisions must be considered in determining whether the debtor’s bankruptcy filing will invoke the automatic stay and stop a pending foreclosure sale.