1681i[c]: Spector v. Equifax

David A. Szwak

1681i[c]: Spector v. Equifax

Postby David A. Szwak » Mon Jan 09, 2006 4:27 pm

Spector v. Equifax Information Services
338 F.Supp.2d 378
Sep 29, 2004

With respect to Spector's alleged postage damages (or "use of equipment to produce the request, and the time for creating and mailing the request," Pl.'s Obj. [Doc. # 96] at 6), Spector is precluded from recovering such monies under the disclosure provision of § 1681g(a) because they were expended prior to Spector making a request for his credit file and thus cannot be causally linked to a subsequent failure to disclose. Any postage costs for mailing the December 12, 2002 and May 7,2003 requests occurred before Equifax received those requests on December 20, 2002 and May 10, 2003 respectively and thus were necessarily incurred before any failure to respond to them. Moreover, while Spector's counsel creatively argues that Spector mailed the May request by certified mail because Equifax claimed the December request had never arrived, see Opp'n [Doc. # 79] at 3, there is no evidentiary basis for counsel's argument; rather Spector's affidavit provides merely a declarative statement with no mention of purpose: "I sent the May 7, 2003, request by certified mail, return receipt requested." Pl.'s Aff. [Doc. # 61] ¶ 17. In sum, there is no evidence of a causal link between any Equifax violation of the disclosure provisions of 15 U.S.C. § 1681g(a) and Spector's claimed out-of-pocket expenses. See also Casella, 56 F.3d at 474 (expenses incurred prior to litigation of FCRA claims to notify consumer reporting agencies of disputed accuracy in credit report *386 and to request inclusion of dispute statement not compensable as actual damages since 15 U.S.C. § 1681i(a) generally imposes no duty to reinvestigate credit information prior to being notified and 15 U.S.C. § 1681i(c) does not require inclusion of statement of dispute until consumer provides one; thus plaintiff's expenses were not incurred to force compliance with the FCRA but to initiate corrections and neither defendant consumer agency could have violated FCRA before having received plaintiff's notice and request).
The Court agrees with Spector that Casella dealt primarily with the inaccurate information FCRA provisions and not with the mandatory disclosure provisions at issue here, but disagrees that Casella's damages discussion is therefore inapplicable to Spector's claim of emotional distress. "The purpose of [15 U.S.C. § 1681g(a) ]'s disclosure requirement is to provide the consumer with an opportunity to dispute the accuracy of information in his file." Hauser v. Equifax, Inc., 602 F.2d 811, 817 (8th Cir.1979). Plaintiff acknowledges this, stating "[t]he sections mandating disclosure to the consumer on request give the consumer the right to review his private financial information before it is sold for profit by the credit bureaus" so that provision of credit information to potential creditors does not occur after a consumer is "denied the fundamental ability to review and challenge the dissemination of inaccurate information...." Pl.'s Obj. [Doc. # 96] at 4.

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