A reporter recently contacted me to talk about a new FCRA class action which alleges that banks may not obtain credit reports on consumers, even after those consumers have discharged their debts to the banks in bankruptcy. The case is Bailey v. Federal National Mortgage Association, Case No. 1:16-cv-01155 (D.D.C). For this month’s blog entry, I’m going to post her questions and my answers:
It’s a FCRA case about a borrower filing a class-action suit against Fannie Mae for unauthorized credit inquiries post-bankruptcy. The borrower filed Chapter 7 and was discharged from his debt in 2013 but alleges 3 years after the discharge, Fannie made an unauthorized inquiry on to Equifax. [My note: the claim appears to be that Bailey obtained a mortgage from Bank of America that was transferred to Fannie Mae; that he filed for bankruptcy in April 2013; that he was discharged in July 2013; and that Fannie Mae pulled his report in July 2015. The claim would be that Fannie Mae lacked a permissible purpose to do this and thus violated the FCRA at 15 U.S.C. Sec. 1681b.].
Just talking to a couple of people to get their take on the issue. Do companies have a right to do so? Does the borrower have a strong case or no? Could this set off a trend for other borrowers to file a similar suit?
There are two big hurdles that this lawsuit will have to overcome, and I doubt that it will be able to do so.
First, the plaintiff will have to show that there are no circumstances under which a mortgage lender can check a credit report post-discharge. If there are some circumstances when that’s okay, and others where it isn’t, then you have to look at the details of each check, which would make a class action impossible. My impression is that after a consumer files for bankruptcy and gets his mortgage discharged, the lender still needs to service the mortgage for a period of time, and it may need to check the consumer’s credit as part of that process. Am I surprised that Fannie Mae checked this guy’s credit three years after his loan was discharged? Yes. But I think that some checks post-discharge may be permissible, and if that’s true, then a class action would not make sense.
Second, the plaintiff will have to show that Fannie Mae’s alleged FCRA violation caused him real harm. This is a big issue – the Supreme Court just stated in Robins v. Spokeo that sometimes an FCRA violation will not cause any harm, and when that happens, the plaintiff lacks standing, and any lawsuit should be dismissed. Here, the plaintiff seems to be alleging that when Fannie Mae checked his credit report, it: i) invaded his privacy; ii) lowered his credit score; and/or iii) made him scared about a possible data breach in the future. This is exactly the kind of intangible harm that the Spokeo decision talked about. It makes the lawsuit look like something that lawyers are doing to get money, as opposed to a call to stop truly problematic behavior.
It’ll be interesting to see how this case proceeds. Law360 says that “Joshua B. Swigart of Hyde & Swigart and by Abbas Kazerounian of Kazerouni Law Group APC.” I have dealt with Hyde & Swigart before, and they are good plaintiffs’ lawyers.