Revival of Claims: Single Publication?

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Revival of Claims: Single Publication?

Postby ChrisGreen » Mon Jul 28, 2014 11:24 am

Fearon v. Fleet Credit Card Services, cause no. 00-2395 (U.S.D.C. Minn. 2/22/01)

The Court applied Ryan v. Trans Union, 2000 Westlaw 1100440 (N.D. Ill. 2000), to find that plaintiff may not allow a potential claim to collect dust then revive it several years later by requesting a credit bureau to issue a CDV. This case and Ryan are absurd and contrary to Hyde and many other FCRA cases rejecting the "single publication rule."
Ryan v. Trans Union Corporation; Experian; Equifax Consumer Disclosure Center; Pac Mortgage Credit Reports; A & T Universal Card; Advanta National Bank, No. 99 C 216, (8/4/00) Judge Kennelly.

PlaintiffÂ’s ex-wife used plaintiffÂ’s social security number to commit application fraud. She made charges to the fraud accounts. Plaintiff ultimately learned of the accounts and contacted the duped creditors about errors/fraud. Plaintiff sued CRAs and duped creditors for failing to correct the error in his credit reports. Two duped creditors moved for Summary Judgment on plaintiffÂ’s FCRA claims against them. "In 1996, Congress amended the FCRA to impose duties upon persons who furnish information to credit report agencies, like the defendant credit card companies. See 15 U.S.C, 1681s-2. Prior to these amendments, the FCRA did not impose any duties on those furnishing information to credit reporting agencies. See, e.g., Batchelor v. First National Bank of Blue Island, No. 92 C 5073, 1993 WL 22859, at *3 (N.D. III. Jan. 20, 1993)."

The Court said: 1681s-2(a) is enforceable only by governmental agencies. See Bacon; Dornhecker; Campbell. But 1681s-2(b) permits private parties to sue furnishers.

The Court held that: "The duties imposed on providers of information under 1681s-2(b) "arise only after the furnisher receives notice from a consumer reporting agency that a consumer is disputing credit information." Dornhecker, 99 F.Supp. 2d at 925. Once the furnisher receives this notice, it must conduct an investigation, review all information provided to it by the reporting agency, and report the results of the investigation to the agency. If the information is found to be inaccurate, it must report the results to all other consumer reporting agencies to which it provides information nationwide. 15 U.S.C. 1681s-2(b)(1)(A)0-(D). Section 1681s-2 became effective on September 30, 1997.

Some alleged claims arose before the effective date of 1681s-2(b). Those are not actionable under the FCRA.

and that Ryan’s communications with them took place in 1996 and 1997. Ryan cannot maintain a claim against the defendants for the alleged failure to correct information at those time, which preceded the statute’s effective date. Only two straws at which Ryan can attempt to grasp. He has no evidence that Universal failed to comply with the statute’s requirement to make an investigation and report the results to the reporting agency–the part of the statute that plaintiff claims Universal violate in 1999.

Second, also in March 1999, Equifax sent Fleet a Consumer Dispute Verification. How this came about is not entirely clear.

It is conceivable that he could have forgotten a communication that he had made with Equifax just a few months earlier; but it is noteworthy that Ryan made no effort to amend his deposition testimony, and he provided no affidavit or other evidence. It is likewise conceivable that RyanÂ’s attorneys, belatedly realizing that Ryan had no viable DCRA claim against the credit card issuers, initiated (or prepared and had Ryan sign) a communication with the reporting agency in an attempt to revive the earlier dispute now that the pertinent FCRA provisions had taken effect. Ryan has offered no evidence that the communication with Equifax.

As to re-disputes and further disputes following continued reports after initial disputes, the Court stated: "... We cannot say that the fact that bad information is old necessarily absolves an information provider from investigating and correcting it after the statuteÂ’s effective date. What we have here, however, is basically an attempt to drag out an old dispute, polish it up, and call it new. We see no basis to permit plaintiff to end-run the statuteÂ’s effective date in this way..." [emphasis added.)

Ryan further alleges that Fleet and Universal were negligent in investigating and accepting and his ex-wifeÂ’s application for credit in the firt place.

1691o(a) ("any person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumerÂ’ for damages and costs).

Ryan concedes–as he must–that he is not asserting a common law negligence claim. 1681h(e) (common law negligence are preempted by the Act).

The Court held: "The FCRA does not give rise t claims for the negligent issuance or acceptance of credit card applicationsÂ’ rather it covers inaccurate or misleading disclosures of information to credit reporting agencies."

Finally, the Court stated: ""... "FCRA is explicit: providers of information like Fleet and Universal are accountable only if they continue to supply inaccurate data to credit reporting agencies after notification..."

Ferber v. Citicorp Mortgage, Inc., 1996 WL 46874 [S.D.N.Y.][court held that cause of action accrued at the time the allegedly libelous credit report was first published to credit agencies and was not revived by defendant's continuous reporting of plaintiff's credit status]
Christopher Green
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