December 5, 2021

Volume XI, Number 339

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December 03, 2021

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December 02, 2021

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Court Confirms CRAs under No Duty to Include Tradelines

A recent case in the Northern District of Minnesota[1] helpfully confirmed that although consumer reporting agencies (“CRAs”) are required by the Fair Credit Reporting Act (“FCRA”) to ensure that the consumer reports are accurate, they are not obligated to include information on all (or any) credit accounts (or “tradelines”) relating to a consumer.

Plaintiff obtained a mortgage loan in 2006. In 2019, he obtained copies of his credit reports from all three credit bureaus and noted that his payment history for his mortgage was not included on any of them. Plaintiff submitted disputes to each credit bureau, asking them to conduct a reasonable reinvestigation and remedy inaccuracies concerning the mortgage account. Experian responded by stating that it was unable to honor his request to place credit information on his credit report. When Plaintiff informed his mortgage lender that his tradeline was missing despite making timely payments, he learned that the lender had stopped submitting information on the account to the three bureaus.

Plaintiff then sued all three credit bureaus, alleging a violation of the FCRA’s requirement that CRAs follow “reasonable procedures to assure maximum possible accuracy” of information reported, as well as a violation of the FCRA requirement to conduct a reasonable reinvestigation of disputed information.

Experian then moved for judgment based on the pleadings.

In granting Experian’s motion, the court reiterated that to plead a viable claim that a CRA violated the FCRA’s accuracy standard, a plaintiff must plausibly allege that the CRA: (1) reported inaccurate credit information about the plaintiff; and (2) failed to follow reasonable procedures to assure the accuracy of such information. Experian argued that the complaint failed to allege either of these elements because the FCRA does not require CRAs to report every account or tradeline of a consumer; rather, the FCRA requires only that the information contained in a credit report be accurate.

Interestingly, Plaintiff did not dispute Experian’s assertion that CRAs generally are not required to add all credit data to a credit report. Instead, he argued that the “missing” data made the credit report misleading and thus inaccurate. This is a clever argument, as courts have held that technically accurate data can still be misleading in such a way and to such an extent that it can be expected to adversely affect credit decisions. In such cases, many courts have found that including such misleading data to be a violation of the FCRA’s accuracy standard.

The court here noted that the Eighth Circuit had not ruled definitively on whether accurate but misleading data violates the FCRA’s accuracy standard, but held that even assuming that it does so violate such standard, Plaintiff’s claim would still fail. The court found that a credit report was not “inaccurate” or “materially misleading” simply because it did not mention a particular tradeline. Furthermore, the complaint failed to allege any facts supporting a plausible inference that the information reported by Experian was materially misleading, and therefore inaccurate.

This is a helpful reminder that although information reported regarding a tradeline must be complete and accurate, the omission of any information at all regarding a given tradeline is not a violation of the FCRA.  It is especially helpful for CRAs dealing with a furnisher that may not have sufficient controls in place to ensure adequate accuracy. Think twice- there is no FCRA requirement that information from all furnishers must be accepted!

[1] Krosch v. Equifax Info. Servs., et al., 2020 U.S. Dist. LEXIS99150 (N.D. Minn., 2020).

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 167
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About this Author

Glenn Brown Data Privacy & Cybersecurity Attorney Squire Patton Boggs Atlanta., GA
Of Counsel

A senior member of our Data Privacy & Cybersecurity Practice Group, Glenn Brown provides business-oriented advice to clients in numerous industries on data privacy and regulatory compliance matters, including regulatory investigations and examinations. He has experience driving privacy and compliance priorities within organizations and providing strategic counsel regarding privacy, compliance and risk to support the growth and success of the business.

Glenn also has deep experience advising clients regarding compliance with many of the US...

678-272-3235
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