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Fair Credit Reporting: 11.3.1.2 Standing in State Courts

Article III standing doctrine does not apply in state courts, and standing requirements vary from state to state.222 Indeed, this fact was noted by Justice Thomas in his dissenting opinion in Ramirez.223 The FCRA permits claims to be brought in state court.224 Thus, depending on the standing requirements in their states, practitioners may want to consider filing FCRA actions in state court.

Fair Credit Reporting: 11.3.3 Obsolete Information

The FCRA prohibits most adverse items of information over seven years old from being included in consumer reports, with the exception of bankruptcies (which may be reported for ten years) and criminal convictions (which may be reported indefinitely).272 Violation of this provision presents clear concrete harm, in that there is a disclosure of negative information that Congress believed should not be disseminated as well as a violation of a person’s privacy interests.

Fair Credit Reporting: 11.3.4.1 Claims for Failure to Follow Reasonable Procedures to Assure Maximum Possible Accuracy

As noted above, the primary claims at issue in Spokeo and Ramirez were violations of section 1681e(b)’s requirement that CRAs “follow reasonable procedures to assure maximum possible accuracy of” consumer reports. This is a typical claim brought when a consumer’s report contains an inaccuracy. In most cases, the inaccuracy is obviously harmful on its face (e.g., late payment, defaulted credit account, debt in collection, criminal history, eviction).

Fair Credit Reporting: 11.3.4.2 Failure to Conduct a Reasonable Reinvestigation of a Dispute

Another of the key protections of the FCRA is the requirement for CRAs and furnishers to conduct a reasonable investigation if the consumer disputes an item in their credit file.304 The classic case under this provision involves the failure of a CRA or furnisher to conduct a reasonable investigation where the dispute involves an error consisting of adverse information. In such cases, there should be little doubt that there is a concrete injury.305

Fair Credit Reporting: 11.3.5.1 Generally

The FCRA contains a number of requirements for CRAs, furnishers, and users to provide notices to consumers. Note that for many of these notices, there is no private right of action for failure to provide them.314 Furthermore, the vast majority of courts have held that the adverse action notice requirement established by section 1681m is not privately enforceable.315

Fair Credit Reporting: 11.3.5.5 CRA Notices to Users and Furnishers

The FCRA requires CRAs to provide certain notices to users and to furnishers, for which the CFPB prescribes the contents.385 The notice to users was one of the claims in Spokeo v. Robins, and the majority specifically referenced it by stating: “A violation of one of the FCRA’s procedural requirements may result in no harm.

Fair Credit Reporting: 11.3.6 FACTA Credit and Debit Card Truncation Requirement

The FCRA, as amended by the Fair and Accurate Credit Transactions Act of 2003 (FACTA), requires merchants to truncate credit and debit card numbers on electronically printed receipts and prohibits them from printing the expiration date.388 Congress enacted this provision to reduce the risk of identity theft, based on its determination that including the expiration date and more than the last five digits of a credit or debit card number on transaction receipts created an unacceptable the risk of theft.

Fair Credit Reporting: 11.4.1 FCRA Claims May Be Brought in Federal or State Court

The FCRA provides that actions may be brought in federal courts without regard to the amount in controversy, or in any other court of competent jurisdiction.436 Bringing an action in state court does not alter substantive rights.437 If state court is the preferred forum, one advantage of including an FCRA claim is that it authorizes an award of punitive damages under certain circumstances, while state claims may not.

Fair Credit Reporting: 11.4.3 Personal Jurisdiction

Personal jurisdiction must exist to proceed against a defendant. However, unlike subject matter jurisdiction, personal jurisdiction may be waived if not raised as an affirmative defense in the initial answer to the complaint.456 When challenged, the plaintiff bears the burden of establishing through specific facts and admissible evidence that personal jurisdiction exists over a non-resident defendant.457 Often, the plaintiff lacks such evidence at the start of a case.

Fair Credit Reporting: 10.7.4.1 Generally

When a furnisher provides false information to a CRA, and a consumer seeks to bring a state law claim against the company, both the preemption and qualified immunity provisions of the FCRA may be implicated. This situation arises frequently, because the FCRA does not provide a private right of action to enforce the accuracy requirements it imposes on furnishers (with one exception),417 and injured consumers therefore have no remedy outside of state law (either state statutes or common law).

Fair Credit Reporting: 11.4.5.1 Generally

FCRA claims may be brought in state or federal court. If the consumer prefers state court, it must be anticipated that the defendants may prefer federal court, either as a general inclination or because of the particular state court judge to whom the case has been assigned.

Fair Credit Reporting: 10.7.1.2 No “Complete” Preemption Allowing for Removal of State Law Claims

Occasionally, where plaintiffs bring state law claims related to consumer reporting in state court, defendants will argue for removal to federal court based on the doctrine of “complete preemption.”261 This argument is rarely successful as courts have consistently held that complete preemption does not apply to the FCRA.262 In any case, it is a jurisdictional question separate from whether the FCRA preempts the “field.” An extensive discussion of removal can be found at

Fair Credit Reporting: 11.4.5.2 How to Avoid Removal

The best way to avoid removal is to bring an action in state court utilizing only state causes of action517 and to keep the amount in controversy less than $75,000 to avoid diversity jurisdiction, while not seeking relief that requires the resolution of a substantial question of federal law.

Bankruptcy Basics: Interviewing the Debtor

Normally the first step in gathering information is to interview the client. In addition to establishing a relationship, this interview will usually serve to quickly identify most cases in which bankruptcy is not appropriate. The initial interview is also a good time to impress upon the client the importance of providing full and accurate information. Usually the best way to do so is to paint a vivid picture of the worst consequences that can result from less than full disclosure, while at the same time emphasizing the confidentiality of the attorney-client relationship.