Wielicki v. HMC Group, ND Ohio 8/13/09

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David A. Szwak
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Wielicki v. HMC Group, ND Ohio 8/13/09

Post by David A. Szwak »

Wielicki v. HMC Group, ND Ohio 8/13/09


The sixth count of the complaint alleges that HMC violated the Fair Credit Reporting Act because HMC “willfully and wantonly reported derogatory information to the credit repositories in order to pressure Plaintiffs into paying a debt they do not owe.” ( Compl., at ¶¶ 31-33.) HMC contends that the Wielickis have no cause of action under the Fair Credit Reporting Act, because there is no private right of action for alleged violations of Section 1681s-2(a). ( Doc. 13, at 5.)

The Fair Credit Reporting Act (FCRA) creates certain duties for furnishers of credit information. For example, the FCRA “imposes a duty upon furnishers of credit information to report accurate information to consumer reporting agencies regarding a consumer's credit.” Bach v. First Union National Bank, No. 04-3899, 2005 WL 2009272, at *3 (6th Cir. Aug.22, 2005) (citing 15 U.S.C. § 1681s-2(a)(1)(A)). However, as HMC points out, the statute does not create a private right of action for violations of Section 1681s-2(a). Bach, 2005 WL 2009272, at *3; Alarcon v. Transunion Marketing Solutions, Inc., No. 5:07 CV 0230, 2008 WL 4449387, at *4 (N.D.Ohio Sept.30, 2008).

Courts have found that “a consumer may recover damages for a willful violation of 15 U.S.C. § 1681s-2(b),” which concerns the duties of furnishers of credit information upon notice of a dispute. Bach, 2005 WL 2009272, at *3; Alarcon, 2008 WL 4449387, at *4. However, to establish a violation of Section 1681s-2(b)(1), “the plaintiff must show that the furnisher received notice from a consumer reporting agency, not the plaintiff, that the information is disputed.” Downs v. Clayton Homes, Inc., No. 03-5259, 2004 WL 253363, at *2 (6th Cir. Feb.9, 2004); Sweitzer v. American Express Centurion Bank, 554 F.Supp.2d 788, 795 (S.D.Ohio 2008). Where the plaintiff does not show that a dispute has been filed with a credit reporting agency, there is no claim under this section of the FCRA. Downs, 2004 WL 253363, at *2; Sweitzer, 554 F.Supp.2d at 795.

There is no private right of action for violations of Section 1681s-2(a). The Wielickis do not allege, or show, filing a written dispute with a credit reporting agency and thus have no cause of action against HMC under Section 1681s-2(b). Therefore, as a matter of law, the Wielickis have no cause of action for a violation of the FCRA. The motion for summary judgment should be granted on the FCRA claim.

Wielicki v. HMC Group
Slip Copy, 2009 WL 2496642
August 13, 2009
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association
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