Expansion of the preexisting qualified immunity provision.
The prior version of the FCRA explicitly provided that consumers could not enforce the provisions of §623(a), which requires furnishers to provide accurate information to agencies, through the liability provisions of the FCRA, §616 (willful noncompliance) and §617 (negligent noncompliance). The FCRA additionally limited liability for violations of the FCRA with a qualified immunity provision that allowed consumers to bring one of the following state law claims only if the consumer showed that the information was furnished with “malice or willful intent to injure”:
(1) A claim “in the nature of defamation, invasion of privacy, or negligence,” (2) Brought against any agency, user, or furnisher; (3) Based in whole or in part on a consumer report; and (4) Based on any of the following:
(a) Disclosures made pursuant to §609 [Disclosures to consumers];(b) Disclosures made pursuant to §610 [Conditions and form of disclosure to consumers];(c) Disclosures made pursuant to §615 [Requirements on users of consumer reports]; or (d) Disclosures by a user of a consumer report to or for a consumer against whom the user has taken adverse action, where the disclosure is based on the report.
FACTA did not amend that provision; however, by expanding the sections referred to in the provision FACTA provided qualified immunity for disclosures that violate the following new provisions:
§609(a)(1)(A), requiring agencies to withhold the last 5 digits of a consumer’s SSN from the disclosure of the consumer’s file if the consumer so requests.
The amendment to §609(c) that requires agencies to provide certain information with their disclosure of a file to a consumer, including the FTC’s summary of consumers’ rights to obtain and dispute information in consumer reports and to obtain and dispute credit scores.
§609(d), requiring agencies to provide consumers who believe they are or may be the victim of identity theft with an FTC-issued summary of their right to use the FCRA’s new procedures for remedying the fraud.
§609(e), allowing identity theft victims to obtain business transaction information from businesses that have done business with the thief.
§609(f), requiring agencies to disclose credit scores and certain related information.
§609(g), requiring mortgage lenders to disclose credit scores to loan applicants and to provide them with a designated notice.
§615(d)2), requiring that users making credit or insurance solicitations present the required prescreening notice in a format, size, type, and manner to be established by the FTC.
§615(h), requiring creditors to issue risk-based pricing notices.
New incorporations into the existing limitation of liability provision for furnishers. The following new furnisher responsibilities which were added to §623(a), are protected from enforcement by consumers pursuant to the limitation of liability provision in §623(c):
§623(a)(6), requiring furnishers to have procedures for responding to identity theft notifications from agencies and prohibiting furnishers from re-submitting fraudulent information.
§623(a)(7), requiring financial institutions to notify customers that they are furnishing negative information to agencies about that customer.
§623(a)(8), allowing consumers to dispute information directly with a furnisher and requiring furnishers to reinvestigate a dispute when it meets certain conditions, to complete the investigation within the designated time, and to notify each agency to whom the furnisher furnished the information if the furnisher finds that it was inaccurate.
§623(a)(9), requiring persons in the business of providing medical services, products, or devices and who furnish information to agencies to notify the agencies of their status as medical information furnishers.
New limitation of liability provisions of the FCRA. FACTA also added the following limitations on liability for new responsibilities under the FCRA.
§609(e)(6), providing that identity theft victims may not enforce their new rights to business transaction information from businesses that have done business with the thief.
§615(h)(8), providing that consumers may not enforce the new obligations of users to provide risk-based pricing notices.
§623(c)(2), providing that consumers may not enforce the obligation of the federal banking agencies, the National Credit Union Administration, and the FTC to establish accuracy and integrity guidelines for furnishers and to prescribe regulations requiring furnishers to establish reasonable policies and procedures for implementing those guidelines.
§623(c)(3), providing that consumers may not enforce the obligation of agencies to issue red flag guidelines and regulations.
- General Discussions, Forum Registration, and ID Theft and Credit-Related News Stories
- General Discussion
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- FCRA Statute and Defined Terms Under the FCRA
- FCRA Statute And Amendments: 15 U.S.C. 1681, et. seq.
- What is a Consumer [Credit] Reporting Agency?
- What is a Consumer [Credit] Report?
- Resellers: Who are They? What Do They Do? Are They Liable Under the FCRA?
- Investigative Consumer [Credit] Reports
- Who is a Furnisher?
- How to Get Your Credit Reports and How and Who to Write Your Dispute Letters to
- How To Get Your Credit Reports
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- FCRA Private Rights of Action and Duties Imposed by the FCRA
- Impermissible Access: 15 U.S.C. 1681b[f] and 1681q
- Front End Duties of the Credit Reporting Agencies: 15 U.S.C. 1681e(b)
- Back End Duties of the CRAs: 1681i[a]:
- Credit Bureau's Duty to Provide Consumer Documentation to Furnisher: 1681i[a][B]
- Duty to Add a Consumer's Dispute Statement in Association with a Specific Account and In Connection with the Credit File/Report: 15 U.S.C. 1681i[c]
- Furnisher FCRA Liability: 15 U.S.C. 1681s-2
- Failing to Mark Contested Accounts As Disputed: 15 U.S.C. 1681s-2[a]
- Obsolescence: When Must the Credit Reportings Come Off of the Credit Report: 15 U.S.C. 1681c
- Duty to Notate Disputed Accounts As Such: 15 U.S.C. 1681c[f]
- Adverse Action Notice Rules: 15 U.S.C. 1681m and ECOA
- Credit Solicitations Are Required to be Clear and Conspicuous: 1681m[d]
- Potential Exposure For Sanctions Due to Filing Bad Faith FCRA Cases: 15 U.S.C. 1681n[c], 28 U.S.C. 1927, and Fed.R.Civ.Proc. 11
- Credit Repair Organizations Act [CROA]
- 1681g: Credit Bureaus' Duties to Provide Reports/Disclosures and to Add 100 Word Statements of the Consumer
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- Common Credit Report Errors and Agency Misconduct
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- Re-Aging: Debt Collector's Efforts to Revive Obsolete Reportings
- Reinsertion of Previously Deleted Data: How and When Can It Happen?
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- Causation: The Crucial Link Between Breach of a Duty and Damages
- Causation to Damage [Proving Your Damages Are Related to and Caused by the Defendants
- Types of Damages, Remedies, and Awards Under the FCRA and Related State Law Claims
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- Punitive Damages: 15 U.S.C. 1681n
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- Other Federal Laws Related to Credit Reporting, Data Privacy, Billing Errors and ID Theft
- FDCPA Statute And Amendments: 15 U.S.C. 1692, et. seq.
- Fair Credit Billing Act, 15 U.S.C. 1666, et. seq.
- Identity Theft and Assumption Deterrence Act of 1998, 18 U.S.C. §1028
- Home Affordable Modification Program (“HAMP”) and Home Affordable Foreclosure Alternatives Program (“HAFA”)
- State Law Claims Related to Credit Reporting, Billing Errors, Privacy Breaches and ID Theft
- Invasion of Privacy: State Law
- Defamation: State Law
- Interference With Prospective Credit: State Law
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- Data Breach Claims and Issues
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- Jurisdiction, Venue, Removal to Federal Court, Remand to State Court, and Other Pre-Trial Jurisdicti
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- Personal Jurisdiction and Venue in Credit Reporting Cases
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- Settlements, Releases, Prevailing Party Status, and Other Things You Need to Know If You Resolve Your Case Before Judgment
- Offers of Judgment In FCRA Litigation
- Secret Documents, Product Information and Testimony
- Choicepoint Secret Documents:
- Equifax/CSC and Affiliates Secret Documents:
- Experian Secret Documents
- Innovis Secret Documents:
- Trans Union Secret Documents
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- Respondeat Superior, Vicarious Liability, and Whether Others Are Liable
- Liability For Employee's FCRA Violations? Liability For FCRA Violations by Third Parties?
- FCRA Preemption, Immunity, and Qualified Immunity
- FCRA Preemption: 15 U.S.C. 1681t[b][F] and Related Discussions
- FCRA Qualified Immunity: 15 U.S.C. 1681h[e] and Related Discussions
- States/Govermental Immunity From FCRA Claims?
- Jury Voir Dire, Instructions, Verdict Forms, etc.
- Jury Instructions and Jury Verdict Forms
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- Credit Card Issues
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- Do You Have a Right to Bring Claims and How Long Do You Have?
- Statute Of Limitation: 15 U.S.C. 1681p
- Standing to Sue
- Credit Scores, Adverse Action Codes, and Other Report Codes
- Credit Scores, Adverse Action Codes, Risk Factors, Denial Codes and Other Scores and Codes Supplied by the Credit Reporting Agencies
- The Mechanics of Credit Reporting
- Public Records Reportings [Non-Bankruptcy]
- Bankruptcy Reporting
- Student Loan Credit Reporting
- Metro Tape [I and II]: Standardized Credit Reporting Formats Used by the Credit Industry
- Defenses Asserted by Credit Reporting Defendants
- What Law Applies? Problems Barring Use of the Court and Law
- Arbitration, Forum Selection, Choice of Law, Choice of Venue and Other Adhesionary Clauses
- Conflicts of Laws Issues in FCRA and Related State Law Issues
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- Statute Of Limitation: 15 U.S.C. 1681p
- FCRA Legal Forms [Suits, Discovery, etc.]
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- FCRA Sample Pleadings: Complaints, Motions, Oppositions and Other Standard Lawsuit Filings
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- Law Outlines: Various Topics
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