Fighting Unfair Credit Reports: A Proposal to Give Consumers More Power to Enforce the Fair Credit Reporting Act
Jeffrey Bils
61 UCLA L. Rev. Disc. 226

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Introduction

What can a consumer do if she discovers that she cannot qualify for a car loan or a home mortgage because one of her creditors has reported that she is delinquent on a loan, even though she is not?  One might think that the best course of action would be to contact the creditor to fix the problem, but under the Fair Credit Reporting Act (FCRA),1 a consumer cannot immediately force a creditor to provide correct information.  Instead, the consumer must ask a consumer reporting agency (CRA)2 to intervene.  But what if the creditor, after receiving notice of a dispute from a CRA, still does not correct the error?  At this stage, a consumer would have a legal right to sue under the FCRA, but a further hurdle emerges: Some federal courts simply toss out such lawsuits on the pleadings because consumers often do not have enough information prior to discovery in order to plead sufficient facts to survive a motion to dismiss.

The result is that for some consumers, there is no effective way to force a creditor to fix errors on a credit report.  The problem is particularly timely now, as consumers continue to struggle in the aftermath of the Great Recession.3  Meanwhile, errors appear on credit reports at an alarming rate.  By one estimate, mistakes appear on the credit reports for as many as forty million Americans.4  A Federal Trade Commission (FTC) study found that 5 percent of consumers have an error on their credit report that could cause them to pay more for products such as loans or insurance.5

This Essay proposes that Congress change the law and grant consumers a statutory private right of action to sue creditors directly—without first notifying a CRA—when those creditors refuse to provide accurate credit information.  Part I describes the scope of the problem, including the importance of credit reports in the American consumer economy and the degree to which they contain inaccuracies.  Part II details the provisions of the FCRA and discusses the legislative history and the hurdles that the law presents for consumers.  Part III examines the pleading requirements for a cause of action arising under the FCRA.  Part IV discusses the findings that federal judges have reached in particular cases, and discusses how those findings support the proposition that Congress ought to change the law.  Part V proposes that Congress enact a straightforward fix by providing consumers with the private right of action that they now lack.

I. The Scope of the Problem

The effort to track the credit histories of 200 million American consumers is a multibillion-dollar industry dominated by three companies: Experian, TransUnion, and Equifax.6  These companies make their money by assembling data from about 30,000 sources, including but not limited to creditors and collection agencies, and then selling that information to customers such as banks and finance companies.7  These credit reports define the consumer’s credit profile to the potential creditor and are summarized in a FICO score.8  FICO scores generally range from 300 to 850, with a higher score indicating better creditworthiness and a greater likelihood of qualifying for consumer loans.9  The FICO score is based on information in the credit reports, and the reports are used for qualifying for educational loans, mortgages, car loans, and other consumer loans.10  Employers also sometimes consult them as part of the hiring process.11  A bad credit report can have a devastating effect, making it difficult for a consumer to engage in basic transactions.12

Despite the importance of credit reports, they are replete with errors.  Congress has acknowledged this and has required the FTC to study credit report accuracy.13  The FTC’s findings are “eye-opening numbers for American consumers” and “make it clear that consumers should check their credit reports regularly.  If they don’t, they are potentially putting their pocketbooks at risk.”14

The study found:

  • One in four consumers identified errors on their credit reports that might affect their credit scores;
  • One in five consumers had an error that was corrected by a credit reporting agency (CRA) after it was disputed, on at least one of their three credit reports;
  • Four out of five consumers who filed disputes experienced some modification to their credit report;
  • Slightly more than one in 10 consumers saw a change in their credit score after the CRAs modified errors on their credit report; and
  • Approximately one in 20 consumers had a maximum score change of more than 25 points and only one in 250 consumers had a maximum score change of more than 100 points.15

Many of these disputes result in federal litigation when consumers are unable to persuade creditors or CRAs to correct errors to their satisfaction.  While it is difficult to quantify exactly how many such lawsuits have been filed, there is anecdotal evidence of a significant number of cases being filed against debt collectors in recent years.16

II. The FCRA and the Private Right of Action

Congress created the Fair Credit Reporting Act (FCRA) in 1970 “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.”17  The FCRA imposes duties on “furnishers” of credit information, such as credit card issuers, stores, lenders, and insurance companies, among others.18  These duties are spelled out in 15 U.S.C. § 1681s-2, and they fall into two categories: Subsection (a) describes the duty to provide accurate information, and subsection (b) describes duties that are triggered when a furnisher receives notice from a CRA that a creditor has disputed some information.

The FCRA includes a private right of action for willful or negligent noncompliance.19  Under subsections (c) and (d) of § 1681s-2, however, the private right of action does not apply to the duty to provide accurate information discussed in § 1681s-2(a).  Rather, a consumer has a private right of action only under § 1681s-2(b), when duties are triggered by notice to a furnisher from a CRA.  Essentially, the consumer must bring his or her dispute to one of the CRAs—such as Experian, TransUnion, or Equifax—and rely on the agency to notify the creditor of the dispute.

Why did Congress structure the law this way, creating an intermediary when there is a dispute?  To shield creditors from lawsuits.  As the Ninth Circuit recently discussed, “Congress did not want furnishers of credit information exposed to suit by any and every consumer dissatisfied with the credit information furnished.”20  Therefore, Congress designated the CRAs as the intermediaries to communicate disputes to creditors, providing a “filtering mechanism” that shields creditors from consumer lawsuits.21  This Essay argues that the filtering mechanism is poor public policy.22  From the consumer’s perspective, it is likely that the duty of accuracy described in subsection (a) of § 1681s-2 is more crucial and fundamental than many of the duties described in subsection (b).  A closer look at the differences between the two subjections helps illustrate why this is so.

A.  No Private Right of Action to Enforce the Duty to Provide Accurate Information

Subsection (a) of § 1681s-2 describes the “[d]uty of furnishers of information to provide accurate information.”23  Among the duties listed is this one:

(3) Duty to provide notice of dispute. 

        If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer.24

Thus, if a consumer disputes the accuracy of information provided by a creditor, then the creditor is supposed to tell the CRAs that the information is disputed.

Perhaps more importantly, the subsection requires: “A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.”25  In addition, it requires: “A person shall not furnish information relating to a consumer to any consumer reporting agency if—(i) the person has been notified by the consumer, at the address specified by the person for such notices, that specific information is inaccurate; and (ii) the information is, in fact, inaccurate.”26

A consumer has no power to force a creditor to do these things, however.  Subsection (d) limits enforcement authority to federal and state agencies.27

B. A Private Right of Action After Notice Is Given Through an Intermediary

Subsection (b) describes “[d]uties of furnishers of information upon notice of dispute.”28  After receiving notice of a dispute, the creditor is required to do the following:

(A) conduct an investigation with respect to the disputed information;

(B) review all relevant information provided by the consumer reporting agency . . . ;

(C) report the results of the investigation to the consumer reporting agency;

(D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and

(E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified . . . (i) modify that item of information; (ii) delete that item of information; or (iii) permanently block the reporting of that item of information.29

Under the FCRA as it presently exists, none of these duties arises if a consumer brings a dispute directly to a creditor.  Instead, these duties are triggered only when a CRA brings them to the attention of a creditor.  This becomes the basis for what a consumer needs to plead when bringing a federal lawsuit against a creditor: The consumer must describe the interaction between the creditor and the CRA.

III. Challenges in Pleading a Cause of Action Under 15 U.S.C. § 1681s-2(b)

A consumer who has complained about a dispute to one of the CRAs, and who believes that the agency has notified the creditor of the dispute, has the authority to sue the creditor, but it is not an easy task.  Many such lawsuits come to an end after the defendant successfully argues for dismissal under Federal Rule of Civil Procedure 12(b)(6).  Two general problems are immediately evident for plaintiffs who face a 12(b)(6) motion: (A) meeting the plausibility standard for pleadings under Federal Rule of Civil Procedure 8; and (B) meeting the high hurdle for what would constitute an unreasonable investigation under the FCRA.

A. The Plausibility Problem

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.”  To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”30

When one examines the elements of an FCRA claim brought under 15 U.S.C. § 1681s-2(b), however, one can see how challenging it might be for a plaintiff who must plead facts that almost always will be difficult to ascertain before discovery.  First, the plaintiff must allege that the defendant creditor was notified of the dispute.  Then, the plaintiff must allege that the creditor investigated the dispute.  How can the plaintiff consumer, before discovery has occurred, obtain sufficient factual matter of what the defendant creditor did or failed to do?

If the consumer were given a private right of action under 15 U.S.C. § 1681s-2(a), basic pleading would be less of a hurdle, because the plaintiff consumer would not be in the position of having to plead sufficient facts regarding communications between the CRA and the creditor, or regarding the internal machinations of the defendant creditor.  Instead, the plaintiff consumer could plead that the disputed information is inaccurate, and that the defendant creditor had reason to believe it was inaccurate (because, for example, the consumer had notified the defendant creditor of the inaccuracy).  It is difficult to imagine that Congress intended for consumers to be hamstrung by pleading requirements in bringing an action under the FCRA.

B. Even an Ineffective Investigation May Be Reasonable

While the FCRA only requires that a creditor conduct an investigation after a CRA notifies it of a consumer dispute, courts generally have held that the investigation must meet a standard of reasonableness.31  Creditors have argued that any investigation, even one of poor quality, should suffice under the FCRA.32  One might assume that it is a victory for consumers that courts have imposed a higher degree of accountability on creditors than what the FCRA might seem to indicate on its face, but this is not necessarily so, because the reasonableness requirement by itself still does not entitle consumers to an accurate resolution of any dispute.  The creditor is liable “not for an investigation that produces incorrect results, but for an unreasonable investigation.”33  The investigation will be based on the information that the creditor receives from the CRA.  To the extent that the CRA has provided limited information, the defendant creditor might not have much to investigate.

In Gorman v. Wolpoff & Abramson, LLP, for example, the defendant creditor MBNA had received four notices of dispute from a CRA regarding the plaintiff consumer’s credit history.34  The district court had granted MBNA summary judgment on some of the claims, and the Ninth Circuit reviewed whether summary judgment was appropriate with regard to the reasonableness of MBNA’s investigation after MBNA received the notices of dispute.  In some of the notices of dispute, MBNA had little to work with.  One of the notices of dispute read: “Claims company will change.  Verify all account information.”35  “In response to [that] notice, MBNA ‘review[ed] the account notes to determine whether MBNA had agreed to delete any charges or to modify the account information in any way.’  It concluded that ‘[n]o such commitment had been made.’”36  The Ninth Circuit panel found that “MBNA could not have reasonably been expected to undertake a more thorough investigation . . . based on the scant information contained in this notice.”37

The Ninth Circuit examined each notice and response and concluded that the district court acted appropriately in granting summary judgment on the facts.38  The court noted: “We emphasize that the requirement that furnishers investigate consumer disputes is procedural.  An investigation is not necessarily unreasonable because it results in a substantive conclusion unfavorable to the consumer, even if that conclusion turns out to be inaccurate.”39

Since the whole point of a lawsuit filed by a consumer under the FCRA presumably would be to correct inaccurate information, the consumer would be in a stronger position if the consumer could sue based on whether the information is in fact inaccurate and on whether the creditor had reason to know the information was inaccurate.  Forcing consumers to sue based on whether a creditor conducted a procedurally reasonable investigation, without regard to whether the investigation detects inaccuracies, does a disservice to the consumer.  Essentially, a creditor is not required to investigate a dispute thoroughly with an eye toward correcting inaccuracies.  Instead, a creditor must merely demonstrate that it went through the motions of a minimally reasonable investigation.  No consumer would be happy with that type of halfhearted response to a legitimate dispute.  Setting such a low bar for creditors, and forcing consumers to meet such a high bar for showing a violation of the FCRA, hinders a court’s ability to require creditors to provide accurate information.  It seems unlikely that Congress intended to create a law that makes it so difficult for consumers to correct inaccuracies on their credit reports.40  After all, the “primary purpose for the FCRA . . . [is] to protect consumers against inaccurate and incomplete credit reporting.”41

IV. Mixed Results in District Court

A few recent cases in the U.S. District Court for the Eastern and Central Districts of California help to illustrate the obstacles and uncertainties that consumers face in trying to bring a claim under the FCRA.  These cases are intended merely as a convenient sampling to illustrate how courts in any district might approach the issue.  Indeed, courts have “have taken a variety of approaches to the degree of precision with which a plaintiff must plead that . . . notification actually took place in order to state a claim under § 1681s–2(b).”42  The sufficiency of pleadings is a recurring theme in these cases, and the outcomes of motions to dismiss appear to depend in large measure on the leniency that a particular judge might choose to afford to a plaintiff.43 The most important issue for the consumer plaintiffs—namely, whether the information is accurate—is not the decisive issue in these cases.  To the extent that consumers seek redress in court to enforce a creditor’s duty of accuracy, these cases make clear that the courts do not consider the duty of accuracy at all.

A. Ali v. Capital One

The facts of this case are typical.  The plaintiff alleged that a creditor had incorrectly identified her as being delinquent and owing more than $11,000.44  She alleged that contrary to the information on her credit history, she “had closed the account and was never late with her payments.”45  She brought a claim under the FCRA alleging, among other things, that the creditor had failed to conduct a reasonable investigation.  The court ultimately dismissed the claim with leave to amend, in part because the plaintiff did not allege sufficient facts regarding the alleged lack of investigation by the creditor.  The court noted: “plaintiff has failed to allege . . . what procedures defendant failed to follow.”46

The court found that in the absence of such factual allegations, the plaintiff had failed to state a claim under the FCRA for this cause of action.  The court did not discuss how the plaintiff might be able to obtain such facts, prior to discovery, in order to be able to plead facts sufficient to survive a motion to dismiss.

B. Duenas v. Nordstrom FSB

The plaintiff consumer in this case had found an account on his credit history that “he did not recognize or remember opening.”47  The plaintiff alleged, among other things, that the defendant creditor had failed to conduct an investigation.  The defendant creditor argued in response that the plaintiff “does not allege . . . what Defendant did to investigate the dispute” or “why this was unreasonable.”48  The court agreed, and it cited Ali v. Capital One as authority for the proposition that the plaintiff must provide factual allegations.  The court dismissed the complaint with leave to amend.  Ultimately, however, the plaintiff did not amend the complaint, and the case was dismissed with prejudice.49

C. Manukyan v. CACH, LLC

The consumer in this case had filed a complaint against ten creditor defendants.50  The plaintiff consumer alleged that her credit report listed accounts that did not belong to her, and she alleged that she “believes that the Credit Agencies then contacted Defendants about Plaintiff’s disputes.”51  The court dismissed the complaint with prejudice for several reasons, including failure to provide specific facts concerning each defendant, and failure to give defendants sufficient notice of what information was disputed.  The case ended without an examination of whether the information on her credit report was, in fact, inaccurate.

D. Petrosyan v. CACH, LLC

In this case, the court gave the plaintiff consumer more of an opportunity to proceed with litigation in the absence of specific factual allegations about the defendant creditor’s investigation.  The court recognized that it would be difficult for a consumer to provide facts to which the consumer has no access, noting:52

The Court cannot determine from the [first amended complaint] that the Defendants’ investigations were reasonable, and if the defendants refuse—as they have here—to give a consumer any insight into the nature of their investigation, the consumer can hardly be expected to provide further facts regarding the nature of the investigation(s) so as to sufficiently allege their unreasonable nature(s).53

In these circumstances, alleging that the defendants did nothing more than verify account accuracy was enough to state a claim for unreasonable investigation under FCRA.54

E. Pleading Sufficient Facts

These four cases are not intended to represent the full range of outcomes in district court, but are intended rather to illustrate the difficulty that plaintiff consumers can face in pleading sufficient facts to state a claim under the FCRA, particularly when those facts might not be available to the plaintiffs.  The point is not that the judges in these cases should have reached a different conclusion; rather, the point is that forcing consumers to state a claim under § 1681s-2(b) creates a situation in which it is difficult for consumers to take action against creditors when they believe information on their credit histories is inaccurate.  If these same consumers had been able to bring causes of action under § 1681s-2(a) instead, invoking the creditor’s duty to provide accurate information, one can imagine that the outcome of motions on the pleadings would not be the same.55

It does not appear to help plaintiffs much that the information they need might be uniquely within the opposing party’s knowledge.  In the context of fraud allegations, the specificity requirement of Federal Rule of Civil Procedure 9(b)56 may be relaxed when the opposing party uniquely possesses the required knowledge, and in those circumstances, pleadings may be made on “information and belief.”57  Even then, however, the plaintiff still must plead the grounds for its beliefs.58  In FCRA lawsuits, however, the cause of action does not sound in fraud.  The requirement under Rule 9(b) for stating with particularity the circumstances constituting fraud or mistake does not come into play in pleading facts for a cause of action under the FCRA, and it is not clear how much opportunity a plaintiff has to plead facts upon information and belief.59

V. A Straightforward Solution: Empower Consumers

As the Ninth Circuit has discussed, the “primary purpose for the FCRA” is “to protect consumers against inaccurate and incomplete credit reporting.”60  While it is true that the FCRA “has been drawn with extreme care, reflecting the tug of the competing interests of consumers, CRAs, furnishers of credit information, and users of credit information,”61 the lack of a private right of action for consumers to force creditors to meet the duty of accuracy appears to fly in the face of the primary purpose of the FCRA.

The private right of action as it pertains to furnishers of credit information dates back to amendments made to the FCRA in 1996.  “Before those amendments, the FCRA imposed no specific duties on furnishers of information . . . .”62  There is little in the legislative history to explain exactly why Congress apparently decided not to provide consumers with a private right of action against furnishers of information.63  For example, the FTC, in trying to divine Congress’s intent, has been forced to look to the structure of the FCRA and draw an inference.64

It is clear, however, that the underlying purpose of the FCRA has been to protect consumers and ensure that credit reports are accurate.65  Therefore, in keeping with this purpose, and in light of the difficulties consumers have faced in pleading a basic cause of action in federal court to try to correct inaccurate information on credit reports, Congress should change the FCRA to create a private right of action for § 1681s-2(a).  There is nothing to prevent Congress from doing this.  “Congress routinely creates new rights of action by amending existing statutes . . . .”66

If Congress is indeed concerned that this new private right of action would expose creditors “to suit by any and every consumer dissatisfied with the credit information furnished,”67 then Congress could require consumers to exhaust administrative remedies first.  Under this proposed change, consumers would still be required to lodge a complaint with the Consumer Financial Protection Bureau, which has the authority to investigate credit accuracy complaints.68  This would provide an alternative filtering mechanism to weed out unmeritorious claims, while still preserving a consumer’s ability to pursue a claim in court without facing the pleading hurdles that now exist.  Congress could create the exhaustion requirement by statute.69

Giving consumers the right to sue creditors directly to enforce the duty of accuracy would further the public policy of protecting consumers’ rights.  It also would help to address the rampant inaccuracies that plague millions of consumer credit reports.

Conclusion

The FCRA imposes duties on furnishers of credit information that include a duty to provide accurate information about consumers, as well as a duty to investigate on notice of a dispute from a CRA.  Under the law as it currently is written, however, consumers have no private right of action against creditors who violate the duty of accuracy.  Instead, consumers must rely on state and federal agencies to enforce that duty.  While consumers do have a private right of action to enforce the creditor’s duty to conduct an investigation on notice of a dispute, it is difficult for consumers to plead that cause of action in federal court, because the facts necessary to allege a plausible claim often are in the possession of the defendant creditor.  Therefore, to provide consumers with better tools to make sure their credit reports are accurate, Congress should create a private right of action so that consumers can sue creditors who breach the duty of accuracy imposed by the FCRA.



  1. 15 U.S.C. §§ 1681–1681x (2012).
  2. See id. § 1681a(f) (“The term ‘consumer reporting agency’ means any 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.”).
  3. While the recession technically ended in June 2009, consumers did not experience a recovery.  Rather, hard times have continued for many.  See David Johnson, End of Recession Doesn’t Mean Good Times Return Right Away, Random Samplings (Sept. 19, 2011), http://blogs.census.gov/2011/09/19/end-of-recession-doesnt-mean-good-times-return-right-away.
  4. 40 Million Mistakes: Is Your Credit Report Accurate?, CBS News (Feb. 10, 2013, 7:04 PM), http://www.cbsnews.com/8301-18560_162-57567957/40-million-mistakes-is-your-credit-report-accurateBut cf. Gerry Tschopp, 60 Minutes Story: Misleading Representation of Credit Reporting Industry, Experian (Feb. 11, 2013), http://www.experian.com/blogs/news/2013/02/11/60-minutes (discussing how, according to the Consumer Data Industry Association, “98% of credit reports are materially accurate” (internal quotation marks omitted)).
  5. Press Release, Fed. Trade Comm’n, In FTC Study, Five Percent of Consumers Had Errors on Their Credit Reports That Could Result in Less Favorable Terms for Loans (Feb. 11, 2013), available at http://ftc.gov/opa/2013/02/creditreport.shtm.
  6. 40 Million Mistakes: Is Your Credit Report Accurate?, supra note 4; see also Fed. Trade Comm’n, Report to Congress Under Section 319 of the Fair and Accurate Credit Transactions Act of 2003, at 2 (2012), http://ftc.gov/os/2013/02/130211factareport.pdf (“The U.S. credit reporting industry consists primarily of three national CRAs that maintain a wide range of information on approximately 200 million consumers.”).
  7. See Fed. Trade Comm’n, supra note 6, at 2–3.
  8. The major consumer reporting agencies (CRAs) each use a scoring software model from FICO (formerly known as the Fair Isaac Corp.).  See Evan Hendricks, Credit Reports, Credit Checks, Credit Scores, GPSolo, July/Aug. 2011, at 33, 33–34.
  9. See Know Your FICO® Scores, Improve Your FICO Scores, Save Money, MyFICO, http://www.myfico.com/crediteducation/articles (last visited Sept. 27, 2013); see also Hendricks, supra note 8, at 34 (noting five categories of FICO scores: (1) 780-850, low risk; (2) 740-780, medium-low risk; (3) 690-740, medium risk; (4) 620-690, medium-high risk; and (5) 620 and below, high risk or “subprime”).
  10. See Hendricks, supra note 8, at 35 (“Aside from lowering your credit score, certain derogatory data can harm your credit worthiness in another way.  If your credit report shows you have outstanding, unpaid debts, such as charge-offs or collections, a mortgage lender or other major creditor will not approve a loan until the unpaid balances are ‘resolved’ and removed from your credit report.  In addition, major lenders and underwriters such as Fannie Mae and Freddie Mac will scan the applicant’s credit report for key derogatory terms: ‘bankruptcy,’ ‘judgment,’ ‘lien,’ etc.  Thus, outstanding unpaid debts listed on the credit report and other types of highly derogatory data can effectively serve as ‘deal killers’ and figuratively place the consumer in ‘credit jail.’”).
  11. See IndexCreditCards.com, A Bad Credit Report Can Hurt Employment Prospects, Street (Sept. 8, 2012, 4:23 PM), http://www.thestreet.com/story/11691436/1/a-bad-credit-report-can-hurt-employment-prospects.html; see also Nathan A. Schacht, Four Words the Fair Credit Reporting Act Has Class Action Plaintiffs and Their Lawyers Repeating: “Show Me the Money!,” BakerHostetler (Jan. 24, 2013), http://www.bakerlaw.com/alerts/four-words-the-fair-credit-reporting-act-has-class-action-plaintiffs-and-their-lawyers-repeating-show-me-the-money-1-24-2013 (discussing class action lawsuits brought against employers for violating the Fair Credit Reporting Act).
  12. See supra note 10 and accompanying text.
  13. See Press Release, Fed. Trade Comm’n, supra note 5.
  14. Id. (quoting Howard Shelanski, director of the Federal Trade Commission’s Bureau of Economics).
  15. Id.  The range of improvement in credit scores may appear to be small, with only one in twenty consumers seeing a change of more than twenty-five points, but this does not mean it is not worth the effort to make improvements.  As the FTC has noted, 5 percent of consumers have a credit report error that could cause them to pay more for products.  Id.  That means ten million American consumers may pay more than they should.
  16. Lawsuits involving a different statute, the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692–1692p (2012), may give some indication of the trends.  See, e.g., Patrick Lunsford, FDCPA Lawsuits Filed by Consumers Decline 7 Percent in 2012, insideARM (Jan. 17, 2013), http://www.insidearm.com/daily/debt-buying-topics/debt-buying/fdcpa-lawsuits-filed-by-consumers-decline-7-percent-in-2012 (describing a decline in the number of FDCPA lawsuits filed “after years of steady growth”); John Rossman, Substantial Sanctions Awarded to Debt Collectors in Recent FDCPA Case, insideARM (Mar. 1, 2013), http://www.insidearm.com/opinion/substantial-sanctions-awarded-to-debt-collectors-in-recent-fdcpa-case (describing multiple lawsuits filed against debt collectors).
  17. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007).
  18. Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 n.7 (9th Cir. 2009).  The FCRA also imposes duties on the CRAs themselves.  See 15 U.S.C. § 1681e(b) (2012) (“Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”).  The requirement on CRAs to follow reasonable procedures does help consumers when creditors provide inaccurate information.  See Neil Vanderwoude, Comment, The Fair Credit Reporting Act: Fair for Consumers, Fair for Credit Reporting Agencies, 39 Sw. U. L. Rev. 395 (2009).
  19. 15 U.S.C. §§ 1681n–1681o; see also Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1059 (9th Cir. 2002) (reasoning how Congress intended to provide a private right of action).
  20. Nelson, 282 F.3d at 1060.  This interpretation of congressional intent is based on an inference drawn by counsel for the Federal Trade Commission after examining the “structure of the statute.”  Id.
  21. Id.
  22. See discussion infra Part V.
  23. 15 U.S.C. § 1681s-2(a).
  24. Id. § 1681s-2(a)(3).
  25. Id. § 1681s-2(a)(1)(A).
  26. Id. § 1681s-2(a)(1)(B).
  27. The Consumer Financial Protection Bureau (the Bureau) has the authority to enforce the FCRASee Consumer Fin. Prot. Bureau, CFPB Bulletin 2013–09, at 2 (2013), http://files.consumerfinance.gov/f/201309_cfpb_bulletin_furnishers.pdf (“The [Bureau] is monitoring com­plaints received from consumers and will prioritize examinations and other actions on the basis of risks posed to consumers.  If the [Bureau] determines that a furnisher has engaged in any acts or practices that violate the FCRA or other Federal consumer financial laws and regulations, it will take appropriate supervisory and enforcement actions to address violations and seek all appropriate corrective measures, possibly including remediation of harm to consumers.”); Allen Smith, New FCRA Forms, New Enforcement Agency, Soc’y for Hum. Resource Mgmt. (Sept. 13, 2012), http://www.shrm.org/legalissues/federalresources/pages/fcra-forms-cfpb.aspx.
  28. 15 U.S.C. § 1681s-2(b).
  29. Id. § 1681s-2(b)(1).
  30. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
  31. See, e.g., Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1157 (9th Cir. 2009) (“We thus follow the Fourth and Seventh Circuits and hold that the furnisher’s investigation pursuant to § 1681s-2(b)(1)(A) may not be unreasonable.”).
  32. See, e.g., id. at 1155 (“MBNA urges that because there is no ‘reasonableness’ requirement expressly enunciated in the text, the FCRA does not require an investigation of any particular quality; any investigation into a consumer’s dispute—even an entirely unreasonable one—satisfies the statute.”).
  33. Drew v. Equifax Info. Servs., LLC, 690 F.3d 1100, 1110 (9th Cir. 2012).
  34. Gorman, 584 F.3d at 1157.
  35. Id. (internal quotation marks omitted).
  36. Id. (second and third alterations in original).
  37. Id. at 1158.
  38. See id. at 1161.
  39. Id.
  40. If Congress is concerned about the danger of numerous filings that might result from making it easier for consumers to sue creditors, Congress could require consumers to exhaust administrative remedies first by lodging a complaint with the Consumer Financial Credit Bureau.  See infra pp. 241–42 and notes 68–69.
  41. Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1060 (9th Cir. 2002).  Indeed, the Nelson court noted that the FCRA was amended in 1996 to allow furnishers of credit information to be subject to suit.
  42. Himmelstein v. Comcast of the Dist., L.L.C., No. 12-1475(JEB), 2013 WL 1137048, at * 4 (D.D.C. Mar. 20, 2013).
  43. For example, the Himmelstein court noted that “[w]here a plaintiff pleads notice to the CRA, to also require an allegation that the CRA notified the furnisher seems overly formalistic.  As other courts have noted, the ‘FCRA is not merely a complex statutory scheme, but one that has been said to contain almost incomprehensibly complex provisions and esoteric structures,’ such that ‘a layperson . . . could not possibly have been expected to comply’ with its procedural requirements.”  Id. at *5 (second alteration in original) (citations omitted).
  44. Ali v. Capital One, No. 1:11-cv-02115-LJO-SKO, 2012 WL 260023, at *1 (E.D. Cal. Jan. 27, 2012).
  45. Id.
  46. Id. at *4.
  47. Order re: Motion to Dismiss at 1, Duenas v. Nordstrom FSB, No. 2:12-cv-02062-GAF-JC (C.D. Cal. Sept. 13, 2012) (granting defendant’s motion to dismiss with leave to amend).
  48. Id. at 4 (alteration in original) (internal quotation marks omitted).
  49. Order Dismissing Case, Duenas v. Nordstrom FSB, No. 2:12-cv-02062-GAF-JC (C.D. Cal. Oct. 15, 2012).
  50. Order re: Defendants’ Motions to Dismiss and Plaintiff’s Motion for Leave to Amend at 1, Manukyan v. CACH, LLC, No. 2:12-cv-08356-RGK-JCx (C.D. Cal. Dec. 11, 2012).
  51. Id. at 2.
  52. Order Granting Defendants’ Motions to Dismiss, Petrosyan v. CACH, LLC, No. 2:12-cv-08683-GW-JEM (C.D. Cal. Dec. 13, 2012).
  53. Id. at 5.
  54. The “original Complaint admitted that the accounts were verified.”  Id. at 3.  As a result, the Court denied the motion to dismiss.  Id. at 5 (“The Court cannot determine from the FAC that the Defendants’ investigations were reasonable, and if the defendants refuse—as they have here—to give a consumer any insight into the nature of their investigation, the consumer can hardly be expected to provide further facts regarding the nature of the investigation(s) so as to sufficiently allege their unreasonable nature(s).”).
  55. Some might object that it is not efficient to use federal courts for these disputes.  Congress could solve this issue by creating an exhaustion requirement.  See infra pp. 241–42 and notes 68–69.
  56. Fed. R. Civ. P. 9(b) (“Fraud or Mistake; Conditions of Mind.  In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.  Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.”).
  57. See Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008) (quoting Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)); see also 61A Am. Jur. 2d Pleading
  58. See, e.g., Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 684 (7th Cir. 1992).
  59. In some cases, courts have denied motions to dismiss when plaintiffs have pleaded facts on information and belief under § 1682s-2(b).  See, e.g., Papapietro v. Trans Union LLC, No. 13-CV-770 YGR, 2013 WL 3803315, at *4 (N.D. Cal. July 19, 2013); Vartanian v. Portfolio Recovery Assocs., LLC, No. 2:12-CV-08358-ODW, 2013 WL 877863, at *4 (C.D. Cal. Mar. 7, 2013).
  60. Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1060 (9th Cir. 2002).
  61. Id.
  62. Brief of the Federal Trade Commission as Amicus Curiae, Supporting Appellant and Urging Reversal at 15, Nelson, 282 F.3d 1057 (No. 00-15946), 2000 WL 33980550, at *15.
  63. Id. at 16 n.6 (“The 1996 FCRA amendments were enacted as part of an omnibus bill and created little direct legislative history to shed light on their meaning.”).
  64. See supra note 20.
  65. See U.S. Gen. Accounting Office, GAO-03-1036T, Consumer Credit: Limited Information Exists on Extent of Credit Report Errors and Their Impli­cations for Consumers 1 (2003) (statement of Richard J. Hillman for the record to S. Comm. on Banking, Hous., & Urban Affairs) (“To help promote the accuracy, fairness, and priva­cy of personal information assembled by consumer reporting agencies (CRAs), Congress enacted the Fair Credit Reporting Act (FCRA) in 1970.”).
  66. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 381 (2004).
  67. Nelson, 282 F.3d at 1060; see supra note 20 and accompanying text.
  68. See Submit a Complaint, Consumer Fin. Prot. Bureau, http://www.consumerfinance.gov/complaint (last visited Sept. 27, 2013).  The Bureau is relatively new, having opened its doors in July 2011.  Consumer Fin. Prot. Bureau, Semi-Annual Report of the Consumer Financial Protection Bureau 5 (2012), http://files.consumerfinance.gov/f/201207_cfpb_ Semi-Annual_Report.pdf.  When a consumer files a complaint with the Bureau against a creditor, the Bureau essentially becomes a facilitator of communications between the consumer and the creditor and sometimes will close a complaint with “no resolution provided.”  See id. at 12–24 (discussing in detail the Bureau’s handling of consumer complaints).
  69. See 2 Paul G. Ulrich et al., Federal Appellate Practice Guide Ninth Circuit § 11:10 (2d ed. 2013) (citations omitted) (“When a statute requires the exhaustion of administrative remedies, the courts have no jurisdiction to undertake judicial review until the administrative proceedings have been completed.”).

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