No Standing to Pursue 1681s-2[a]: No Private Right

Who has the right to bring FCRA and related claims for credit reporting abuses? What if the plaintiff dies? Can a spouse join in the suit for damages?
David A. Szwak

No Standing to Pursue 1681s-2[a]: No Private Right

Postby David A. Szwak » Wed Nov 30, 2005 1:27 pm

Burns v. Bank of America,
Not Reported in F.Supp.2d, 2003 WL 22990065, S.D.N.Y., Dec 18, 2003

Plaintiff had no standing to pursue 1681s-2[a] claims; only Attorney Generals or FTC can pursue those. Private plaintiff cannot. No private right of action.

David A. Szwak

Postby David A. Szwak » Sat Dec 03, 2005 11:17 am

Riley v. General Motors Acceptance Corp.
226 F.Supp.2d 1316

Before proceeding to analysis of § 1681s-2(b), the court must first address plaintiff's allegations in paragraph 17 of the complaints against GMAC. The plaintiff alleges that "Defendant likewise violated the mandates of section 1681s-2(a) and such violations form the basis of a negligence per se claim and an intentional tort per se." The preliminary question of standing prevents the court from reaching the question of whether violations of 1681s-2(a) may constitute "negligence per se" or "intentional tort, per se" claims under Alabama law.
There is no private cause of action under 15 U.S.C. § 1681s-2(a). This is clear from the language of 15 U.S.C. § 1681s-2(c), which states, "Sections 1681n and 1681o of this title [providing for civil liability for willful or negligent noncompliance with the FCRA] do not apply to any failure to comply with subsection (a) of this section, except as provided in section 1681s(c)(1)(B) of this title [providing for civil actions filed by the chief law enforcement officer of a State or other such official]." 15 U.S.C. § 1681s-2(c)(West 2002). The limitation is more clearly stated in § 1681s-2(d): "Subsection (a) of this section shall be enforced exclusively under section § 1681s of this title by the Federal agencies and officials and the State officials identified in that section." Thus, because he is not the Attorney General of Alabama or an appropriate federal official, the plaintiff has no standing to allege claims under 1681s-2(a) against FCRA. See Aklagi v. Nationscredit Financial, 196 F.Supp.2d 1186, 1192 (D.Kan.2002)("[B]ecause of [§ 1681s-2] subsections (c) and (d), the [plaintiffs] have no private cause of action for [defendant/credit information furnisher's] arguable violations of [§ 1681s-2] subsection (a)."); Yelder v. Credit Bureau of Montgomery, L.L.C., 131 F.Supp.2d 1275, 1283 (M.D.Ala.2001)("[Plaintiff's FCRA] claim fails because no private right of action exists for a violation of § 1681s-2(a)"); Fino v. Key Bank of New York, 2001 WL 849700 *4 (W.D.Pa.2001)("There is no private right of action for a violation of [§ 1681s-2(a) ]." (emphasis in original)); Quigley v. Pennsylvania Higher Education Assistance Agency, 2000 WL 1721069 *2 (N.D.Cal.2000)(In suit filed under 1681s-2(a), concluding that "plaintiff does not have a private right of action under the FCRA against [defendant] as a furnisher of information to consumer reporting agencies."); DiMezza v. First USA Bank, Inc., 103 F.Supp.2d 1296, 1299 (D.N.M.2000)("It is without doubt, ... that § 1681s-2(d) under the subtitle defining the duties of furnishers of information, by its language, exclusively limits enforcement of the accurate information provisions under § 1681s-2(a) to federal and state officers thus precluding any action under sections 1681n and 1681o.").
*1320 [1] The court finds no reported authority confronting the first issue before this court: an allegation that violations of § 1681s-2(a) form the basis for state law "negligence per se or intentional tort, per se" claims. Either no federal court has confronted a similarly pled complaint or the proposition is so fundamental that no court has bothered to publish on the issue. In any case, this court holds that where the plaintiff has no private cause of action under § 1681s-2(a), the plaintiff cannot allege violations of 1681s-2(a) as the basis for state law claims. Accordingly, all state law claims based on alleged violations of § 1681s-2(a) are DISMISSED.

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