Docstoc

EDITORS

Document Sample
EDITORS Powered By Docstoc
					            FCRA NEWSLETTER • October 20, 2009 • STRASBURGER & PRICE, LLP



The Strasburger FCRA Newsletter is   Ninth Circuit Affirms Dismissal of Consumer’s
designed to keep you current on      FDCPA and FCRA Claims Against Furnisher
FCRA-related legal issues and
events. For more frequent updates,   Brooks v. Citibank (South Dakota), N.A., 2009 U.S.
see our blog at the FCRA Blog.       App. LEXIS 20119 (9th Cir. Or. Sept. 8, 2009)
                                     Facts: The trial court granted Defendant Citibank’s Rule
          PREPARED BY
                                     12(b)(6) motion to dismiss Plaintiff’s claims under the Fair
                                     Debt Collection Practices Act (“FDCPA”) and the Fair
                                     Credit Reporting Act (“FCRA”), which the Ninth Circuit
                                     Court of Appeals affirmed.
                                        •   FDCPA. Section 1692e prohibits debt collectors
                                            from using any false, deceptive, or misleading
                                            representation or means in connection with the
                                            collection of any debt. A “debt collector” is defined
                                            in § 1692a(6) as any person who regularly collects
                                            or attempts to collect, directly or indirectly, debts
          Paul W. Sheldon                   owed or due or asserted to be owed or due
   paul.sheldon@strasburger.com             another.
   2801 Network Blvd., Suite 600
          Frisco, TX 75034              •   FDCPA. The FDCPA does not apply to creditors
           (469) 287-3955                   attempting to collect their own debt.
                                        •   FCRA. Under § 1681s-2(b)(1)(A)-(C), when a
            EDITORS                         furnisher is notified of a dispute with regard to the
                                            completeness of the information it provides, the
         Erik J. Grohmann                   furnisher must: (1) conduct an investigation with
           Tiffany L. Cox                   respect to the disputed information; (2) review all
                                            relevant information provided by the consumer
          Marc F. Kirkland                  reporting agency; and (3) report the results of the
           Paul L. Myers                    investigation to the consumer reporting agency.

          M. Kasey Ratliff              •   FCRA. When Plaintiff only generally disputed the
                                            accuracy of an account, Defendant’s investigation
         Paul W. Sheldon                    of comparing the personal information provided by
       Martin E. Thornthwaite               Plaintiff to the information in Defendant’s records,
                                            checking the account information, and confirming
                                            the accuracy of the debt was reasonable as a
                                            matter of law.
         Printer friendly page
             FCRA NEWSLETTER • October 20, 2009 • STRASBURGER & PRICE, LLP

Continued from Page 1
Plaintiff’s Motion to Remand Granted as the FCRA Does Not Provide Complete
Preemption of State Law Claims
Ortiz v. Nat’l City Home Loan Servs., 2009 U.S. Dist. LEXIS 89671 (S.D. Tex. Sept. 29,
2009)
Facts: Plaintiff filed suit in state court alleging that Defendant had wrongfully foreclosed on his
home and improperly deducted a portion of the monthly mortgage payment for insurance, which
created a shortage on the loan obligation. Plaintiff only asserted state and common law claims
against Defendant. Defendant removed the action alleging that Plaintiff’s state law claims were
completely preempted by the FCRA, as some of Plaintiff’s factual allegations related to the
reporting of derogatory information to the consumer reporting agencies (“CRAs”). Plaintiff
moved to remand and the Court granted the motion.
   •   Preemption. Section 1681t states that the FCRA does not preempt state law causes of
       action except in areas where state law conflicts with the purposes of the federal statute.
       Because there is not complete preemption under this section, it is merely an affirmative
       defense which does not authorize removal.
   •   Preemption. Nothing in the language of the FCRA reflects a clear intent on the part of
       Congress to make preempted claims removable where a plaintiff chooses state court
       and refuses to plead a federal cause of action. A plaintiff cannot be forced to amend his
       complaint to do so. Here, Plaintiff’s Complaint was not removable as he did not seek or
       claim relief based on a federal statute and did not seek relief requiring resolution of a
       substantial question of federal law.

Plaintiff’s § 1681s-2(b) FCRA Claim Survives Summary Judgment Because His Evidence
Created a Fact Issue and Could Qualify as an Exception to the Hearsay Rule
Gannon v. IC Systems, Inc., 2009 U.S. Dist. LEXIS 87466 (S.D. Fl. Sept. 23, 2009)
Facts: Plaintiff filed a lawsuit against Defendant IC Systems, Inc. for alleged violations of the
FCRA, the FDCPA, and the Florida Consumer Collection Practices Act (“FCCPA”). Defendant
filed a motion for summary judgment as to all claims asserted against it, and the Court
dismissed all but a single FCRA claim brought under § 1681s-2(b). Defendant then filed a
second motion for summary judgment on the remaining claim, and the Court again denied
summary judgment finding that disputed issues of material fact remained. There was conflicting
evidence as to whether Defendant reported to the CRAs that the account was in dispute.
   •   Furnisher Duties. A furnisher is under no duty to conduct an investigation regarding a
       dispute pursuant to § 1681s-2(b) until the furnisher receives notice of the dispute from a
       CRA.
   •   Furnisher Duties. The Court stated that the Plaintiff would need to prove that after
       Defendant received notice of the dispute from the CRA, the Defendant “reported the
       debt without any mention of a dispute so as to make the information misleading in such
       a way and to such an extent that it can be expected to have an adverse effect on
       Plaintiff’s credit report or credit score.” While Defendant claimed that the account was


                                                                                                      2
             FCRA NEWSLETTER • October 20, 2009 • STRASBURGER & PRICE, LLP

       updated to reflect the dispute, Plaintiff submitted his own declaration stating that many of
       his credit files from the CRAs did not reflect that the account had been disputed. The
       Court refused to strike the admissibility of Plaintiff’s testimony and credit reports on the
       grounds of hearsay and authenticity because the credit reports could qualify as a
       business record exception to the hearsay rule.

Court Denies Creditor’s Motion to Dismiss Plaintiff’s FCRA Claim And Allows Discovery
Into Whether Creditor Received Notice of Dispute from a CRA
Kibbie v. BP/Citibank, 2009 U.S. Dist. LEXIS 81806 (M.D. Pa. Sept. 9, 2009)
Facts: Pro se Plaintiff alleged that Defendants violated her rights under the FCRA and the
FDCPA. Defendants Verizon and World Financial Network Bank (WFNNB) filed motions to
dismiss. The Court granted Verizon’s motion to dismiss and held that Plaintiff failed to properly
plead a cause of action against it. As for WFNNB, the Court found Plaintiff stated a claim under
§ 1681s-2(b) of the FCRA because Plaintiff should be allowed to conduct discovery to
determine whether WFNNB ever received notice of Plaintiff’s dispute from a CRA. All of
Plaintiff’s claims related to the FDCPA were dismissed because neither Defendant was a debt
collector as defined under the Act.
   •   Furnisher. The FCRA does not define “furnishers” but the term is understood to include
       “various types of creditors, such as banks and other lenders, that provide credit
       information about their customers to other entities that issue consumer reports about the
       customers’ credit worthiness.”
   •   Furnisher Duties. A furnisher of information “is under no duty to conduct an
       investigation regarding a disputed entry on a consumer’s credit report pursuant to §
       1681s-2(b) until the furnisher receives notice of the dispute from a consumer reporting
       agency.” Although Plaintiff did not allege that WFNNB received notice of the dispute
       from a CRA, the Court concluded that Plaintiff’s claim should not be dismissed. Plaintiff
       should be allowed to conduct discovery to determine whether WFNNB did, in fact,
       receive notice of the dispute from a CRA.
   •   Failure to State a Claim. The Court dismissed Plaintiff’s § 1681i claims against Verizon
       and WFFNB because these claims apply only to CRAs and not creditors. Plaintiff’s
       1681s-2(b) claim against Verizon failed because Plaintiff did not allege that she made a
       dispute of her Verizon account with a CRA.

Pro Se Plaintiffs’ Unspecified FCRA Claim Dismissed for Failure to State a Claim, Along
with Ten Other Unsupported Claims
Romulo v. Optima Funding, Inc., 2009 U.S. Dist. LEXIS 81161 (N. D. Cal. Sept. 8, 2009)
Facts: Pro se Plaintiffs had fallen in arrears on their refinanced home loan, resulting in
foreclosure. Plaintiffs brought suit against multiple Defendants, including the original lender,
Optima Funding, and a subsequent trustee, American Home. Plaintiffs alleged the following
claims: 1) violation of the Homeownership Equity Protection Act; 2) violation of the Real Estate
Settlement Procedures Act (“RESPA”); 3) violation of the Federal Truth In Lending Act (“TILA”);
4) violation of the FCRA; 5) fraudulent misrepresentation; 6) breach of fiduciary duty; 7) unjust



                                                                                                      3
             FCRA NEWSLETTER • October 20, 2009 • STRASBURGER & PRICE, LLP

enrichment; 8) civil conspiracy; 9) violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”); 10) action to quiet title; and 11) usury. Defendant American Home
brought a Rule 12(b)(6) motion to dismiss, which was granted as to all eleven claims, although
the Court granted Plaintiffs leave to amend ten of the eleven claims.
   •   Failure to State a Claim. Dismissal pursuant to Rule 12(b)(6) is appropriate where
       there is no cognizable legal theory or there is an absence of sufficient facts alleged to
       support a cognizable legal theory. In evaluating a motion to dismiss, all allegations of
       material facts are taken as true and construed in the light most favorable to the
       nonmoving party. The court, however, is not required to accept as true allegations that
       are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Nor
       do courts assume the truth of legal conclusions merely because they are cast in the form
       of factual allegations.
   •   Furnisher Duties. Plaintiffs’ FCRA claim generally alleged that Defendants were
       providers of information to the CRAs and that they wrongfully reported negative
       information as to the Plaintiffs to one or more CRAs. This claim failed for two reasons.
       First, Plaintiffs generally alleged their claim against “Defendants,” without identifying
       which defendant was responsible for their alleged injuries, and thus failing to place
       American Home on notice of the claim being asserted against it. Second, American
       Home is not a proper defendant with respect to Plaintiffs’ FCRA claim, as such claim
       was premised on conduct in which American Home was not involved, including the
       loan’s origination.
   •   Pleadings. All of Plaintiffs’ remaining claims were also dismissed for failure to state a
       claim. The complaint did not allege any facts specific to American Home, making it
       impossible to tell what conduct was being alleged against it, and therefore failing to
       satisfy the minimal notice pleading standards of Rule 8. Furthermore, Plaintiffs failed to
       plead with requisite particularity the specific representations for each claim attributable to
       American Home. Plaintiffs instead relied on vague and conclusory allegations that could
       not withstand Defendant’s motion to dismiss for failure to state a claim.
   •   Fiduciary Duty. The elements of breach of fiduciary duty are: 1) the existence of
       fiduciary duty; 2) a breach of the fiduciary duty; and 3) resulting damage. The
       relationship between a lending institution and its borrower-client is not fiduciary in nature.
       As a general rule, a financial institution owes no duty of care to a borrower when the
       institution’s involvement in a loan transaction does not exceed the scope of its
       conventional role as a mere lender of money. A commercial lender is entitled to pursue
       its own economic interests in a loan transaction.

Plaintiff’s Permissible Purpose Claim Survives Motion to Dismiss
Cappetta v. GC Servs L. P., 2009 U.S. Dist. LEXIS 80619 (E.D. Va. Sep. 4, 2009)
Facts: Plaintiff alleged that Defendant collection agency violated § 1681b of the FCRA            by
obtaining her consumer report without a permissible purpose and violated the FDCPA in             its
collection efforts. Plaintiff’s claims arose out of Defendant’s efforts to collect debt from      an
American Express credit card account which her estranged husband opened and she was               an



                                                                                                        4
             FCRA NEWSLETTER • October 20, 2009 • STRASBURGER & PRICE, LLP

authorized user. During its collection efforts, Defendant’s representatives told Plaintiff that her
social security number and signature were on the credit card application, but neither statement
was true. As part of its collection efforts, Defendant contacted Experian Information Solutions,
Inc. and requested a copy of Plaintiff’s consumer report because it represented that it was
collecting on an account resulting from Plaintiff’s credit transaction. Defendant moved to
dismiss Plaintiff’s claims and the Court denied the motion.
   •   Permissible Purpose. Section 1681b(a)(3)(A) provides that a CRA may provide a
       consumer report: “to a person which it (the CRA) has reason to believe intends to use
       the information in connection with a credit transaction involving the consumer on whom
       the information is to be furnished and involving the extension of credit to, or review or
       collection of an account of, the consumer.” Further the person who obtains the report
       shall not do so unless: (1) the consumer report is obtained for a purpose for which the
       consumer report is authorized to be furnished under §1681b; and (2) the purpose is
       certified in accordance with § 1681e by a prospective user of the report.
   •   Permissible Purpose. In order to survive a motion to dismiss, a plaintiff must allege,
       with sufficient factual support, that a defendant willfully or negligently obtained her
       consumer report without a legitimate business purpose for doing so. Plaintiff satisfied
       her burden by alleging that at the time Defendant certified it had a permissible purpose
       to obtain Plaintiff’s consumer report, it knew that it was not in possession of any
       application on the account and that Plaintiff was only listed, at most, as a supplemental
       cardholder.
   •   FDCPA. Defendant’s assertion that the Voluntary Payment Doctrine (“Doctrine”)
       precluded any recovery of Plaintiff’s FDCPA claim was rejected by the Court. The
       Doctrine, which is recognized by Virginia courts, holds that where a person with full
       knowledge of the facts voluntarily pays a demand unjustly made upon him, that party is
       not entitled to recover the money paid. The Court determined that it was exercising
       jurisdiction by virtue of a federal question, not diversity of citizenship, thus nothing
       obliged the Court to apply state substantive law. Moreover, the Defendant failed to
       present authority that Congress had incorporated the Doctrine as a defense to an
       FCDPA claim.

Illinois Court Dismisses FACTA Claim Due to Consumer’s Use of Corporate Credit Card
For Business Purposes
John Pezl v. Amore Mio, Inc., 2009 U.S. Dist. LEXIS 80999 (N.D. Ill. Sep. 4, 2009)
Facts: Plaintiff brought an action alleging violations of the FACTA provisions of the FCRA.
Plaintiff alleges Defendant Amore Mio Restaurant negligently and willfully violated § 1681c(g)
when the Restaurant provided Plaintiff with a computer-generated credit card receipt displaying
more than the last five digits of the credit card number. Plaintiff used his business “CE Design”
credit card and admitted that the restaurant transaction was for business purposes. Amore Mio,
Inc. filed its Motion for Summary Judgment, claiming that the FCRA (and thus its FACTA
amendment) does not provide a private right of action to business entities. The Court agreed.




                                                                                                      5
              FCRA NEWSLETTER • October 20, 2009 • STRASBURGER & PRICE, LLP

   •   FACTA Requirements. Section 1681c(g)(1) provides: "[N]o person that accepts credit
       cards or debit cards for the transaction of business shall print more than the last 5 digits
       of the card number or the expiration date upon any receipt provided to the cardholder at
       the point of the sale or transaction."
   •   FCRA requirements. FACTA does not contain a separate provision establishing a
       private cause of action as the right to sue is only granted under the FCRA. The FCRA
       provides a private right of action for individuals and not business entities.
   •   FCRA “consumer” requirements. The credit card agreement stated that the credit
       card at issue was established for the business entity known as “CE Design” and not for
       Plaintiff individually. The agreement also stated that Plaintiff was a “Business
       Cardmember” and use of the card was limited to “commercial or business purposes.”
       This, coupled with the Plaintiff’s admission that the restaurant purchase was for business
       purposes, was evidence enough to establish “CE Design” as the “consumer” under the
       FCRA and not Plaintiff. Accordingly, the Court granted the restaurant’s Motion for
       Summary Judgment.

Illinois Court Finds Online Register Receipt Containing Customer’s Credit Card Number
and Expiration Date Satisfies “Printed Receipts” Requirements Under FACTA
Romano v. Active Network, Inc., 2009 U.S. Dist. LEXIS 78983 (N.D. Ill. Sep. 3, 2009)
Facts: Plaintiff brought an action alleging violations of the FACTA provisions of the FCRA.
Plaintiff alleges Defendant Active Network, Inc. (“ANI”) willfully violated § 1681c(g) when it gave
Plaintiff an online register receipt which displayed more than the last five digits of her credit card
and the expiration date. ANI filed a § 12(b)(6) motion for failure to state a claim on the ground
that Plaintiff obtained a receipt from ANI over the internet and that such an occurrence would
not be a scenario covered by § 1681c(g). The Court disagreed and denied ANI’s motion.
   •   FACTA Requirements. Section 1681c(g)(1) provides: "[N]o person that accepts credit
       cards or debit cards for the transaction of business shall print more than the last 5 digits
       of the card number or the expiration date upon any receipt provided to the cardholder at
       the point of the sale or transaction."
   •   FACTA Requirements. The use of the word “print” in § 1681c(g) was merely used to
       convey the meaning of publishing information rather than imprinting ink on a piece of
       paper that is generated by a machine or electronic device. Congress did not say that §
       1681c(g) applied with respect to any “receipts” provided in person, but rather applied
       with respect to any “cash register or other machine or device that electronically prints
       receipts for credit card or debit card transactions.” Note: See Turner v. Ticket Animal,
       LLC. which held that the term “print” only applies to paper receipts and not e-mail or
       internet receipts.
   •   FACTA Purpose. There is nothing in FACTA that states that its sole purpose is to
       protect “in person” transactions. Instead, FACTA was put in place to prevent criminals
       from obtaining access to consumer’s private financial and credit information in order to
       reduce identity theft and credit card fraud. This includes the protection of internet
       transactions.


                                                                                                         6
             FCRA NEWSLETTER • October 20, 2009 • STRASBURGER & PRICE, LLP

   •   Willful Claim. A plaintiff need only provide sufficient allegations to show that a claim is
       plausible on its face. The willfulness issue cannot always be resolved at the motion to
       dismiss stage since it may involve facts beyond its pleadings.
   •   Willful Claim. There is no injury prerequisite for willful violations of the FCRA.

Furnisher’s Summary Judgment Fails as to §1681s-2(b) Claim in Employment Information
Case
Derozier v. Walgreen Co., 2009, U.S. Dist. LEXIS 78872 (E. D. Wisc. Sept. 2, 2009)
Facts: Plaintiff, a cashier at one of Defendant Walgreen’s Drug Stores was terminated because
of an alleged theft of ten dollars from the cash register. Plaintiff admits to removing the cash,
but claims that she intended to repay it at the end of her shift, which she did, but not before the
register drawer had been closed for the night. After terminating Plaintiff’s employment,
Walgreen notified Choicepoint, a CRA, that Plaintiff’s employment had been terminated due to
theft. Plaintiff brought FCRA and breach of employment contract claims, alleging that such
information was inaccurate, and that neither Walgreen nor Choicepoint conducted a reasonable
reinvestigation into her disputes. Walgreen filed a motion for summary judgment, which was
granted in part and denied in part.
   •   Furnisher Duties. The FCRA prohibits any person from reporting to a CRA information
       that the person knows or has a reasonable cause to believe is inaccurate. However,
       §1681s-2(c) specifically exempts violations of §1681s-2(a) from private civil liability, as
       only the Federal Trade Commission can initiate a suit under that section.
   •   Furnisher Duties. The FCRA places obligations on furnishers once they receive notice
       from a CRA of a dispute regarding the accuracy or completeness of information. In the
       event of such notice, the furnisher must, under §1681s-2(b): 1) conduct an investigation
       with respect of the disputed information; 2) review all relevant information provided by
       the CRA; 3) report the results of the investigation to the CRA; and 4) if the information is
       found to be inaccurate or incomplete, report the results to all CRAs to which it originally
       provided the erroneous information.

CRAs Obtain Summary Judgment on Pro Se Consumer’s FCRA Claims
McDonald v. Equifax, Inc., 2009 U.S. Dist. LEXIS 79190 (N.D. Tex. Sept. 2, 2009)
Facts: Pro se Plaintiff filed suit against Trans Union and Equifax, alleging violations of the
FCRA. The court granted Defendants’ motions for summary judgment because Plaintiff failed to
come forth with any evidence in support of his claims.
   •   FCRA. Section 1681e(b) requires a CRA to follow reasonable procedures to assure the
       maximum accuracy of the information contained in the consumer reports it prepares.
   •   FCRA. A credit entry may be inaccurate either because it is patently incorrect or
       because it is misleading in such a way and to such an extent that it can be expected to
       adversely affect credit decisions.




                                                                                                      7
             FCRA NEWSLETTER • October 20, 2009 • STRASBURGER & PRICE, LLP

   •   FCRA. CRAs are not held strictly liable for inaccurate entries. Rather, Plaintiff must
       show that the inaccuracy resulted from a negligent or willful failure to use reasonable
       procedures when the report was prepared.
   •   Pro Se Litigants. Pro se litigants are expected to comply with the rules of pleading and
       the rules of service. The district court does not have a duty to search the entire record to
       find evidence supporting Plaintiff’s opposition to Defendants’ motions for summary
       judgment. Plaintiff was required to identify specific evidence in the record, and articulate
       the precise manner in which that evidence supports his claim.

Plaintiff’s FCRA Claims Against an Individual Defendant were Dismissed Because the
Individual Defendant was not a Consumer Reporting Agency
McKinley v. Harvey Toyota of Bossier City, Inc., 2009 U.S. Dist. LEXIS 78807 (W.D. La.
Aug. 31, 2009)
Facts: Plaintiff alleged that an individual defendant, Edward Parker, (“Parker”) violated certain
sections of the FCRA. Parker filed a motion for summary judgment seeking dismissal of
Plaintiff’s claims on the basis that he did not fall within the scope of the FCRA. The Court
agreed and dismissed Plaintiff’s FCRA claims against Parker.
   •   Consumer Reporting Agency. The FCRA defines “consumer reporting agency” in
       § 1681a(f) as “[a]ny person which, for monetary fees, dues, or on a cooperative nonprofit
       basis, regularly engages in whole or in part in the practice of assembling or evaluating
       consumer credit information or other information on consumers for the purpose of
       furnishing consumer reports to third parties, and which uses any means or facility of
       interstate commerce for the purpose of preparing or furnishing consumer reports.”
   •   Consumer Reporting Agency. Plaintiff did not offer any facts to controvert Parker’s
       statement that he was “not a credit reporting agency.” The Court concluded that there
       was no evidence that Parker regularly engaged in the practice of assembling or
       evaluating consumer credit information or other information on consumers for the
       purpose of furnishing consumer reports to third parties.

Florida Court Dismisses Plaintiffs’ Claims Related to Alleged Bait-and-Switch
Sales Tactics by Defendant
Grinke v. Countrywide Home Loans, Inc., 2009 U.S. Dist. LEXIS 82655 (S.D. Fla. Aug. 24,
2009)
Facts: Plaintiffs sued Defendant seeking rescission of their mortgage and damages for failing
to make the required disclosures in violation of the Truth in Lending Act (“TILA”), the Real
Estate Settlement Procedures Act (“RESPA”), the FCRA, The Equal Credit Opportunity Act
(“ECOA”) and Florida Deceptive Trade Practices Act (“Florida DTPA”). These claims all relate to
Plaintiffs’ mortgage for which they claimed the Defendant engaged in bait-and-switch sales
practices such that Plaintiffs were induced to sign loan documents by promises of low interest
rates and few costs when the documents actually contained significantly less favorable terms.
Defendant moved for dismissal on the grounds that the claims were time barred or defectively
plead. The Court granted the Defendant’s motion.


                                                                                                      8
                  FCRA NEWSLETTER • October 20, 2009 • STRASBURGER & PRICE, LLP

    •    TILA. Rescission under TILA is only available to borrowers whose transaction is
         secured by the principle dwelling of the person to whom credit is extended. Because the
         loan in question was secured by Plaintiffs’ second home, rescission was not an available
         remedy.
    •    TILA. Rescission under TILA is not available for residential mortgage transactions.
         Because Plaintiffs’ loan was residential mortgage transaction, rescission was not an
         available remedy.
    •    TILA. TILA has a one year statute of limitations. Plaintiffs’ claim was brought more
         than two years after it accrued. Plaintiffs attempted to argue that equitable tolling
         applied to their claim due to fraudulent concealment on the part of the Defendant.
         Plaintiffs’ argument failed as the Court found that the allegations did not create a
         plausible basis for the ongoing concealment necessary to justify equitable tolling. Part of
         the Court’s reasoning rested on the fact that Plaintiffs received notice, in the form of bills,
         requiring payments higher than they anticipated shortly after signing the loan
         documents.
    •    RESPA. The only section of RESPA that provides civil remedies to borrowers for failing
         to disclose is 12 U.S.C. § 2605(b)(1). That section requires lenders to notify borrowers
         when their loans are transferred to a third party during servicing. Plaintiffs’ RESPA claim
         failed because the complaint contained no allegations that the loan was ever transferred
         or that Plaintiffs suffered damages as result of the non-disclosure.
    •    ECOA. Plaintiffs’ ECOA claim failed due to limitations and because the Court found the
         claim impermissibly vague. Plaintiffs’ attempt to establish a basis for tolling, by relying
         on vague assertions related to the bait-and-switch sales tactics, did not constitute the
         kind of ongoing fraudulent concealment that might justify tolling.
    •    FCRA. The Court found that Plaintiffs’ FCRA claim was inadequate because it failed to
         allege a critical condition precedent: that Plaintiffs ever gave Defendant notice that they
         disputed the information reported. Without notice, a furnisher is not obligated under the
         FCRA to investigate the accuracy of the information.
    •    Supplemental Jurisdiction. The Court declined to exercise supplemental jurisdiction of
         Plaintiffs’ Florida DTPA claims given Plaintiffs’ failure to properly plead a federal
         question.
PUBLICATIONS: To subscribe to other Strasburger publications, please visit Strasburger Publications.
DISCLAIMER: Articles contained within this newsletter provide information on general legal issues and are not intended to provide
advice on any specific legal matter or factual situation. This information is not intended to create, and receipt of it does not
constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel.
ADVERTISEMENT NOTICE: This communication may constitute a commercial electronic mail message subject to the CAN-SPAM
Act of 2003. If you do not wish to receive further commercial electronic mail messages from the sender, please send an e-mail to
Strasburger@Strasburger.com and request that your e-mail address be removed from future mailings. To update your address,
please send an email to Strasburger@Strasburger.com including the updated information. Strasburger & Price, LLP, 901 Main
Street, Suite 4400, Dallas, TX 75202.




                                                                                                                                    9

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:25
posted:4/15/2011
language:Polish
pages:9