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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: 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: Chapters, Appendices, Practice Tools, and Pleadings

As a step-by-step guide, attorneys should familiarize themselves with all of the Chapters, in the order they are presented. Chapters are designed to be succinct, instructive, and easy-to-read, focusing on the basics necessary to successfully represent a debtor through the various stages of a bankruptcy case.

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.

Bankruptcy Basics: Creditors.

One source of information that should not be overlooked is the creditor to whom a debt is or may be owed. Creditors are usually quick to respond to inquiries regarding the balance due and the security interests that they have. A sample letter that may be sent to creditors is provided in Form 2, Appendix C, infra.

Bankruptcy Basics: Payment Advices.

Section 521(a)(1)(B)(iv) requires debtors, unless the court orders otherwise, to file copies of all pay stubs (referred to as “payment advices”) or other evidence of payment received from an employer within sixty days before the filing of the petition. Some districts have adopted local rules which instruct debtors to provide these payment advices to the trustee, rather than filing them with the court.

Bankruptcy Basics: Incapacity, Disability, or Active Military Duty.

A waiver of the briefing requirement may be requested if the debtor is disabled or incapacitated. However, the law sets out a rather strict standard on what it means to be disabled or incapacitated for purposes of the counseling waiver, so debtors may have difficulty convincing a court to grant a waiver on these grounds. The debtor may also request a waiver if the debtor is on active military duty in a combat zone.

Bankruptcy Basics: Exigent Circumstances.

If the debtor needs to file bankruptcy in an emergency to stop a home foreclosure, automobile repossession, wage attachment, or some other “exigent circumstance,” a temporary waiver of the counseling requirement may be requested.

Bankruptcy Basics: Payment in Installments

If the debtor is not eligible for a chapter 7 filing fee waiver or has filed a chapter 13 case, the filing fee may be paid in up to four installments over a period of 120 days (or up to 180 days with court permission). Bankruptcy Rule 1006(b) provides that the petition may be accompanied by an application signed by the debtor stating that the debtor is unable to pay the filing fee except in installments. The form for this application is Official Form 103A.

Bankruptcy Basics: Counseling Certification

In the vast majority of cases the certification that the debtor received the prepetition credit counseling from an approved agency will be filed along with the petition. Occasionally there may be some problem in obtaining the certification before the petition is filed even though the debtor completed the briefing prepetition. In that situation the certification should be filed no later than fourteen days after the petition date. If additional time is needed a motion for extension of time under Bankruptcy Rule 1007(c) should be filed before the fourteen-day period expires.

Bankruptcy Basics: Filing Fee

If the debtor has filed a motion to waive the filing fee or to pay the fee in installments, the attorney will want to confirm that the court has acted on the motion. In some cases the attorney may need to provide additional information requested by the court, or appear at a hearing. If a motion to pay the filing fee in installments is granted by the court, the order will be sent by the court to the debtor and to debtor’s counsel.

Bankruptcy Basics: Required Documents

Soon after the case is filed the attorney should wrap up any loose ends on the required initial documents. If additional information is needed from the debtor to complete the schedules and statements a letter similar to that provided in Form 3, Appendix C, infra, should be sent.