Pre-FACTA:Statute Ran From When User "Obtained" Re

David A. Szwak

Pre-FACTA:Statute Ran From When User "Obtained" Re

Postby David A. Szwak » Tue Nov 01, 2005 9:53 pm

Williams v. Avco Financial Services, 865 F.2d 1262, 1988 Westlaw 138662 [4th Cir.[N.C.]] Dec. 12, 1988.

Williams, a pro se litigant, appeals the court's order dismissing, as time-barred, his suit filed pursuant to the FCRA. The appellate court vacated the order of the court, and remanded for further proceedings. Williams filed this action on April 14, 1986, complaining that on or about April 2, 1984, the defendants, AVCO Financial Services [AVCO] and AVCO's agent, ran an unauthorized credit check on him, and later disclosed the credit report in a court proceeding without his permission.

The court dismissed the action for failure to state a claim. The appellate court vacated the order of the court, holding that Williams may have stated a claim under 1681q. See Williams v. AVCO Fin. Servs., No. 87-1141 [4th Cir. Jan. 20, 1988] [unpublished].

On remand, the court held that Williams' claims were barred by the FCRA's two-year statute of limitations contained in 1681p. Section 1681p provides that an action under the FCRA must be brought within two years "from the date on which the liability arises." Liability under 1681q "arises" when a person "obtains information on a consumer ... under false pretenses." [Emphasis added]. According to Williams' complaint, the defendants requested a record of his credit history on April 2, 1984. The credit report on Williams obtained by the defendants was dated April 2, 1984. Likewise, the invoice documenting AVCO's request for Williams' credit history was dated April 2, 1984.

However, the record does not conclusively reflect when AVCO "obtained" the credit report. Although it may be unlikely, it is possible that AVCO did not receive the report until on or after April 14, 1984. As the operative date for determining the commencement of the limitations period under 1681p is receipt of the report by AVCO, the case must be remanded for a finding as to when that was.

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