After Dismissal of Bankruptcy Case, Here’s What’s Next for Giuliani? Without the protection of Chapter 11, the former mayor and Trump lawyer could have his assets seized and sold by creditors. See the article in the New York Times. The article can be found at https://www.nytimes.com/2024/07/13/us/politics/rudy-giuliani-bankruptcy-case.html?smid=nytcore-android-shareWhen Mayor Giuliani filed for Chapter 11 bankruptcy, he received the benefit of Section 362 of the Bankruptcy Code, which provides an automatic stay against lawsuits and enforcement of judgments so the debtor can reorganize. With the dismissal of the bankruptcy case, Mayor Giuliani loses the protection of the automatic stay, and his assets can be liened or levied by creditors. Individuals with questions about the automatic stay or personal bankruptcy should contact Jim Shenwick, Esq.Jim Shenwick, Esq  917 363 3391  [email protected] Please click the link to schedule a telephone call with me.https://calendly.com/james-shenwick/15minWe help individuals & businesses with too much debt!

Law Review (Economics): Zhou, Yijun and Wang, Qingchen, Artificial Intelligence and Debt Collection: Evidence from a Field Experiment (May 29, 2024). Ed Boltz Tue, 07/16/2024 - 16:02 Available at: https://ssrn.com/abstract=4847870 or http://dx.doi.org/10.2139/ssrn.4847870 Abstract: This paper examines the role of artificial intelligence (AI) in facilitating the non-judicial collection process of delinquent consumer debt. Leveraging a randomized field experiment in the Netherlands, we show that algorithmic calling decisions achieve higher repayment rates with fewer collection calls compared with human collection officers. Uncovering the black box of AI, we find that it extracts predictive signals from unstructured notes compiled by collectors. These signals not only predict whether the delinquent borrowers would repay during the non-judicial collection process, but also shed light on the underlying motivations or impediments of delinquent borrowers' repayment behavior. Commentary: While this research looks to increase the efficiency of debt collection through the use of AI,  it does also provide valuable insights for human consumer  bankruptcy attorneys,   because the motivations of consumers in filing bankruptcy is generally just the flip side of the same coin from encouraging repayment by debt collectors.  That "discussions on non-repayment consequences'' (an anodyne description to say the least)  between debt collectors and consumers has little impact on repayment might indicate that similarly such conversations would not otherwise exacerbate a consumer's fears sufficiently to overcome other impediments to filing bankruptcy. With proper attribution,  please share this post.    To read a copy of the transcript, please see: Blog comments Attachment Document artificial_intelligence_and_debt_collection_evidence_from_a_field_experiment_compressed.pdf (775.71 KB) Category Law Reviews & Studies

If your finances have become too much to handle on your own, you can file for bankruptcy for relief. However, you likely worry that this option will not be available to you if you filed for bankruptcy before. Fortunately, Pennsylvania does not put a set limit on the number of times a person can file for bankruptcy. If you have filed for Chapter 7 or Chapter 13 bankruptcy in the past, you can still file again if times get tough. However, you might have to wait several years before you will be able to file. Our attorneys can help you determine how long you are likely to wait as we prepare your new case. If the court dismissed your previous case, you might not need to wait at all. Our team can also help extend automatic stays if you are filing for another time in the same year. Call our Pennsylvania bankruptcy attorneys at Young, Marr, Mallis & Deane at (609) 755-3115 for your free case evaluation. How Long Do I Have to Wait to File for Bankruptcy in Pennsylvania if I Filed in the Past? Individuals who have filed for bankruptcy in the past might wonder if they can file again in Pennsylvania if they find themselves in more financial trouble. The short answer is yes. People in Pennsylvania can file for bankruptcy again even if they have filed in the past. However, how long you have to wait before filing again will depend on a few factors, like what type of bankruptcy you filed before and what you would like to file now. Our Philadelphia bankruptcy lawyers can determine when your previous case was filed and how long you will need to wait before filing your new one. If you do need to wait, our team can arrange your financial disclosures in the meantime. The following will explain exactly how long you must wait before filing again in Pennsylvania: When You Previously Filed for Chapter 7 Bankruptcy Many people file for Chapter 7 bankruptcy, also known as “liquidation” bankruptcy, as a straightforward method of discharging their debts. If you need to file Chapter 7 bankruptcy but filed for Chapter 7 before, eight years must pass from the date your previous case was filed before filing a new case. While Chapter 7 bankruptcy generally stays on a person’s credit report for ten years, you will be permitted to file two years before the discharge is removed from your record. If you filed for Chapter 7 in the past but now plan on filing for Chapter 13 bankruptcy, you will only need to wait four years from the date you filed for Chapter 7. Chapter 13 bankruptcy is much different than Chapter 7. Instead of liquidating a debtor’s assets to satisfy their debts, the debtor creates a repayment plan to repay the debts over a three to five-year period. Thus, you do not need to wait as long if filing for Chapter 13 bankruptcy. When You Previously Filed for Chapter 13 Bankruptcy If you previously filed for Chapter 13 bankruptcy the first time in court, you can generally file for Chapter 7 bankruptcy after six years. However, you might be able to file sooner. As mentioned, Chapter 13 uses a repayment plan rather than liquidation to pay a person’s debts. If you satisfy the plan and repay all your unsecured debts in the time given, you can file for Chapter 7 bankruptcy in less than six years. It should also be noted that you can apply for Chapter 13 bankruptcy even if you did not receive a discharge in your Chapter 7 case. For those filing Chapter 13 bankruptcy for the second time, the waiting period is two years. However, if you paid off at least 70% of your unsecured debts and made a good-faith effort to pay the remaining amount, you might be able to file for Chapter 13 bankruptcy before two years have passed. How Long Will I Need to Wait if My First Bankruptcy Filing Was Dismissed by the Court in Pennsylvania? The timeframes discussed above typically only apply to bankruptcy filings that were accepted by the court. However, the court might have dismissed your case before initiating the process. Bankruptcy cases are complex, and cases are often dismissed because a document was not filed, trustees were not paid, or the debtor had no real plan to repay their debts. Fortunately, you will usually not need to wait long before filing your bankruptcy claim again. Regardless of which type of bankruptcy you are filing for, you should be able to immediately refile. However, you might have to wait up to 180 days before refiling if the court makes an order against you for failing to obey it in some way. The problem with refiling a bankruptcy case is that you might not get the full benefits of an automatic stay. Automatic stays are orders that put a stop to creditors’ and debt collectors’ collection attempts and lawsuits as soon as the bankruptcy filing has been approved by the court. For a first filing, no time limit is placed on the stay. If you are filing for bankruptcy a second time within the same year, your second automatic stay only lasts 30 days unless the court approves a motion to extend the stay that has some evidence that your case will be successful, like financial records. After the second bankruptcy filing, no automatic stay will go into effect upon the third filing in the same calendar year. To get an automatic stay in these situations and put a stop to debt collectors’ harassment, you will need to file a motion to impose an automatic stay. However, the court will not approve the motion if you cannot provide evidence that you are in a better financial position than before. When Should I Consider Filing for Bankruptcy Again in Pennsylvania? The reasons you might file for bankruptcy again could be the same reasons as before. For instance, if you had overwhelming credit card or medical debts, you might have filed for Chapter 7 bankruptcy to discharge those debts. You might need to file for Chapter 7 again if rent has gone unpaid or you suffered an injury and have new medical debt. However, Chapter 13 bankruptcy might be a better option this time if your financial situation is better than the last time you filed. It would also allow you to keep your assets where some might have been discharged in your previous case. Of course, the reverse could be true. You might not have the financial resources to complete a Chapter 13 repayment plan over a few years and simply want to discharge your debts through Chapter 7 and move on. Our Pennsylvania Bankruptcy Lawyers Can Help Prepare Your New Filing For a free case review, contact our Radnor, PA bankruptcy lawyers at Young, Marr, Mallis & Deane by calling (609) 755-3115.

E.D.N.C.: Atkinson v. National Credit Systems- Personal Jurisdiction for Consumer Rights Claim Ed Boltz Mon, 07/15/2024 - 23:37 Summary: Mr.  Atkinson  brought a pro se complaint against Penn Rose Management,  which appears to be an apartment management company with locations in numerous states,  but not North Carolina,  and National Systems alleging various violations of FCRA,  FDCPA and North Carolina UDTPA laws.  The court found it lacked personal jurisdiction over Penn Rose Management  as Mr. Atkinson did not plausibly allege any contacts between it and North Carolina, dismissing without prejudice claims against Penn Rose.  The district court then dismissed with prejudice Mr.  Atkinson's FCRA claim, stating there is no private right of action under 15 U.S.C. § 1681s-2(a),  his  defamation claim as  § 1681h(e)  preempts such , and  the FDCPA  claims  as Mr. Atkinson did not plausibly allege that NCS was  a debt collector as defined by 15 U.S.C. §1692a.   The court further declined to exercise supplemental jurisdiction over the state-law claims against NCS and dismissed them without prejudice  Commentary: Mr.  Atkinson's failure to plead that NCS is a debt collector  under the FDCPA would certainly seem to have been an inadequacy in pleading by a pro se Plaintiff and not a judicial determination that NCS is not actually a debt collector,  especially as it describes itself on its own webpage as being "a specialized collection firm helping apartment owners and managers recover money that is rightfully owed to them by former residents who have not fulfilled their lease obligations." With proper attribution,  please share this post.  To read a copy of the transcript, please see: Blog comments Attachment Document atkinson_v._national_credit_systems.pdf (233.52 KB) Category Eastern District

Law Review Note: Cody Turner, Non-Uniformity is the New Uniformity: Inconsistent Quarterly Fees and Why the Bankruptcy Administrator System Must Go, 40 Emory Bankr. Dev. J. 253 (2024). Ed Boltz Mon, 07/15/2024 - 19:46 Available at:   https://scholarlycommons.law.emory.edu/ebdj/vol40/iss2/3 Abstract: The Bankruptcy Clause’s call for uniformity is one of the more mysterious and unstudied constitutional constraints on bankruptcy, yet it is an ever-present policy consideration. It is a flexible guidepost that functions as a minor constraint on bankruptcy law. However, courts have recently allowed this guidepost to bend too much. When the courts upheld a split bankruptcy administration system as constitutionally uniform, it set the stage for needless, avoidable litigation. The most recent examples of such needless litigation are the Supreme Court cases of Siegel v. Fitzgerald and Office of the United States Trustee v. John Q. Hammons Fall 2006, LLC. This Comment analyzes the Bankruptcy Uniformity Clause’s history, the need for its enactment, and its evolution. It also analyzes the circuit split leading to Siegel and John Q. Hammons and the motivations behind the Siegel decision. Next, this Comment examines remedies in post-Siegel cases, and where the future of Bankruptcy Uniformity Clause jurisprudence may be headed. Finally, this Comment argues that the existence of a dual-scheme United States Trustee and Bankruptcy Administrator system is unconstitutional. This Comment proposes that Alabama and North Carolina join the other forty-eight states in the U.S. Trustee system to avoid pointless litigation like Siegel and John Q. Hammons. Commentary: Being published shortly before the Supreme Court  decision in UST v. John Q. Hammons,  this law review note does not have the benefit seeing that  it has become increasingly clear that while the Justices do seem to appreciate having a bankruptcy case or two  on their docket every term,  since it gives them the opportunity  for collegial statutory analysis on a topic over which few outside the bankruptcy bar will get incensed, whatever appetite SCOTUS has for  tackling constitutional  issues related to bankruptcy have largely been sated. The recommendation by this note that to cure any nonuniformity between the two parallel systems would be to eliminate the Bankruptcy Administrators in favor of the U.S. Trustee program,  however,  seem largely based on the fact that geographically one exists in 48 state (not counting territories) and the other exists  in only 2.  That discrepancy has over the last forty years become a reality,  so  the allowance of geographical non-uniformity by Supreme Court precedent could be an ex post facto  basis for the continuation of the dual systems.   The note, which by its nature is not conducive to extended research, also does not delve into the actual "on the ground"  differences between the U.S. Trustee and Bankruptcy Administrator systems or even speak with stakeholders and interested parties regarding this issue. Those issues  include the greater susceptibility of the UST  program to the shifting political  winds,  the conflicts that can arise in BA districts due to judicial oversight of Chapter 13 Trustees,  or the discrepancy in resources between the B As and the Department of Justice,  which can be most apparent in large Chapter 11 cases.  Also unconsidered is the remaining  issue of whether either the US Trustee,  being part of the executive branch, or the Bankruptcy Administrators, being part of the judicial branch,  are constitutional or impinge on the separation of powers.   Perhaps this topic merits further research. With proper attribution,  please share this post.  To read a copy of the transcript, please see: Blog comments Attachment Document non-uniformity_is_the_new_uniformity_inconsistent_quarterly_fees_and_why_the_bankruptcy_administrator_system_must_go.pdf (884.69 KB) Category Law Reviews & Studies

Book Review: Jacoby, Melissa- Unjust Debts: How Our Bankruptcy System Makes America More Unequal Ed Boltz Mon, 07/15/2024 - 19:42 Available at Amazon:  Unjust Debts: How Our Bankruptcy System Makes America More Unequal But purchasing from your local bookstore is certainly better.  The first person to ask, will get my copy to read and then pass forward. Summary From the inside cover: Bankruptcy is the busiest federal court in America. In theory, bankruptcy in America exists to cancel or restructure debts for people and companies that have way too many—a safety valve designed to provide a mechanism for restarting lives and businesses when things go wrong financially. In this brilliant and paradigm-shifting book, legal scholar Melissa B. Jacoby shows how bankruptcy has also become an escape hatch for powerful individuals, corporations, and governments, contributing in unseen and poorly understood ways to race, gender, and class inequality in America. When cities go bankrupt, for example, police unions enjoy added leverage while police brutality victims are denied a seat at the negotiating table; the system is more forgiving of civil rights abuses than of the parking tickets disproportionately distributed in African American neighborhoods. Across a broad range of crucial issues, Unjust Debts reveals the hidden mechanisms by which bankruptcy impacts everything from sexual harassment to health care, police violence to employment discrimination, and the opioid crisis to gun violence. In the tradition of Matthew Desmond’s groundbreaking Evicted, Unjust Debts is a riveting and original work of accessible scholarship with huge implications for ordinary people and will set the terms of debate for this vital subject. Table of Contents: Bankruptcy for Real People Race Disparities in Bankruptcy for Real People Bankruptcy for Fake People Civil Rights in a Bankrupt City My Money, My Rules From Overindebtedness to Liability Management Beyond the Victory Lap Commentary: From the perspective of the consumer debtor's bar,  the overwhelming  benefits that Chapter 11 debtors receive compared to Chapter 13  debtors.  These include the "front-loaded"  discharge at confirmation,  the absence of a trustee,  third-party releases (contrast the Sacklers and their  modest contributions to the plan with the requirement in Chapter 13 that co-signed debts require payment in full to grant just a stay and not a discharge),  longer periods over which to pay secured and priority debts, binding creditors with misleading voting, the broad deference given to "non-standard"  plan provisions,   etc. (Many of these Chapter11 benefits would be available to consumers through the Chapter 10 envisioned in Sen. Elizabeth Warren's Consumer Bankruptcy Reform Act.) But Chapter 11 is available to individuals as well... The main reason that individuals don't file Chapter 11 cases is the expense, the lack of expertise in the consumer debtor's bar, and that  regular Chapter 11 attorneys don't want to deal with the unwashed masses.  (Otherwise you might see them handle a pro bono SLAP every now and then.) So what if, in addition to excellent public-facing scholarship such as this,   law school  professors also helped teach law students and practicing attorneys how to file simple "pre-packaged"  or "cookie cutter" Chapter 11  cases for everyday  people? Dumb it down, give consumer  form pleadings,  Best Case for Chapter 11 and call it "Chapter 24"  (11+13),  so that can churn these out,  even if we're not $2500/hr  Tall Building Lawyers. Not only would real people start to get the same advantages that fake people (i.e. corporations)  have long taken  advantage of in Chapter 11,  but the courts and Congress might,  under a sudden groaning burden of regular folks sloppily filing disclosure statements and appearing on first day orders,  start to consider rebalancing the bankruptcy system.  (Not to mention the terror-filled response that  the consumer financial services industry would have.) Heck,  for less than $10  consumers could get a Post Office Box in Wilmington, Delaware and take advantage of that court's vaunted bankruptcy expertise. Other reviews and interviews: Publisher's Weekly:  Fake People, Real Obligations: PW Talks with Melissa B. Jacoby Kirkus Reviews:  Unjust Debts- An impassioned plea for confining bankruptcy to its core purpose of resolving just debts justly. Blog comments Category Book Reviews

4th Cir.: U.S. ex rel Oberg v. Nelnet- Improperly Sealed Pleadings violate the First Amendment Ed Boltz Mon, 07/15/2024 - 18:30 Summary: Jon Oberg filed a False Claims Act lawsuit in 2007 against various student-loan companies, alleging they submitted false claims to the Department of Education.  The companies moved to file summary judgment materials under seal, which was temporarily granted. The case eventually settled, and the sealed documents were not revisited.  In  2023,  Michael Camoin, a documentary filmmaker, later requested access to these sealed documents, claiming a right to access under the First Amendment, but the magistrate judge denied Mr.  Camoin’s request, concluding that the documents did not play an adjudicative role since the case settled before summary judgment was decided.  On appeal, the Fourth Circuit held that the First Amendment right of access applies to documents filed in connection with summary judgment motions, regardless of whether the court ruled on the motions.  This right of access attaches upon the filing of the documents and is intended to ensure transparency and public understanding of judicial proceedings. Commentary: Oh, no!  Now the release of these documents might suddenly make the public think badly of Nelnet and other student loan servicers. This also implicates the sealing of documents in bankruptcy cases,  including for example the special proceeding(s) related to BB&T/Truist ( see   MDNC case number in 23-mp-00401),  which was sealed in 2023 and remains so,  despite assurances that such documents would be unsealed before the end of that year.  All too often  it seems that the temporary nature of such protection is forgotten and  misdeeds are permanently hidden  from public view.  See also Legal Newsline v. Garlock Sealing Technology,  where the district court, after castigating both itself and the bankruptcy court,  set out standards for taking the extraordinary measure for maintaining documents under seal. With proper attribution,  please share this post.    To read a copy of the transcript, please see: Blog comments Attachment Document us_ex_rel_oberg_v_nelnet.pdf (205.87 KB) Category 4th Circuit Court of Appeals

Bankr. E.D.N.C.: In re Wireless Solutions & E.D.N.C.: Gross v. Smartsky Networks- The Automatic Stay Continues to Protect Abandoned Property Ed Boltz Mon, 07/15/2024 - 18:23 Summary: These decisions have proceeded in parallel  matters,  first the bankruptcy case of Wireless Solutions and then the lawsuit brought in federal district court  individually by Mr.  and Mrs.  Gross, the owners of Wireless Solutions, against Smartsky Networks. In the bankruptcy case,  Smartsky  sought a finding of contempt and an award of sanctions against Mr. and Mrs.  Gross for bringing suit in federal court against it as individuals,  when such causes of action belonged to the bankruptcy estate of Wireless Solutions.  Mr. and Mrs.  Gross,  however,  contend that they control the potential claims following the abandonment of those by the Chapter 7 Trustee (which returned those claims to Wireless Solutions) and their assignment by Wireless Solutions to Mr. and Mrs. Gross.  Smartsky countered that the abandonment excluded the intellectual property of Wireless Solutions, to which these claims were inseparably tied.  The bankruptcy court agreed that the claims were related to the Intellectual Property of WSS, which was specifically excluded from the abandonment by the Trustee., and that the Grosses had failed to demonstrate a valid transfer of these claims under state law, making the purported transfer document invalid.  Even had the abandonment and transfer been complete and utter,  the court held that Wireless Solutions as the debtor held interests that continued to be subject to the  automatic stay, preventing the Grosses from asserting them without obtaining relief from the stay.  Accordingly,  the court ordered the Grosses to cease pursuing any claims in the District Court Action that belong to WSS or involve its Intellectual Property, but  declined to hold them in contempt or impose monetary sanctions, as there had been was a "fair ground of doubt" about the wrongfulness of their conduct and no clear evidence of harm to SmartSky directly related to this bankruptcy case. In the parallel appeal,  after SmartSky Networks, LLC successfully obtained a judgment declaring a  $2.5 million arbitration award against Mr.  Gross to be non-dischargeable as a willful and malicious injury.  Mr.  Gross then filed a motion for a new trial based on new evidence, which the bankruptcy court denied and he appealed, arguing that new evidence warranted a new trial.  The district court reviewed the bankruptcy court’s order under the standards of Rule 59, which allows for a new trial in cases of newly discovered evidence, an intervening change in law, or to correct clear error or prevent manifest injustice,  but found that Mr. Gross did not present new evidence in his initial motion to the bankruptcy court, rendering the motion deficient. Commentary: It is worth noting that the "willful and malicious injury" that was declared non-dischargeable against Mr.  Gross in Chapter 7 pursuant to  11  U.S.C.  . § 523(a) (6) would,  since it appears to have been for willful and malicious injury to the (intellectual) property  of a corporation.  Had Mr.  Gross instead filed Chapter 13 (back when he might have squeaked in under the now expired debt limit),  under 11 U.S.C.  § 1328(a)(4)  that obligation would have been dischargeable,  both because he caused  a property injury and not personal injury, but also because only injuries to individuals  and NOT corporations are nondischargeable in Chapter 13.  Perhaps this is one of the rare unicorn examples of the Bankruptcy Code treating real people better than fake people.  (Since I have been disabused of my success in spotting such a fantastical beast several times now by the author of that distinction, I will wait for her opinion before being too confident.) As can occasionally happen in bankruptcy cases,  witness the Hamilton v. Lanning case years ago,  the regular positions of parties in bankruptcy cases can be reversed from what would normally be expected.  Here a creditor was seeking enforcement of the automatic stay,  not the debtor,  but such decisions,  while helpful for the Smartsky in this particular case,  can have unintended consequences for creditors in other cases.  This decision shows that while abandonment terminates the automatic stay as to property of the estate,  it is not,  pursuant to 11 U.S.C. 362(c)(2),  actually terminated as to the property of the debtor  until the earliest of the closure, dismissal or denial of discharge.   This also leads to the question of whether consumer debtors,  seeking to bring cause of action against creditors or even personal injury,  divorce or other legal actions,  are required to file a Motion for Relief from Stay in their own bankruptcy case before proceeding. With proper attribution,  please share this post.  To read a copy of the transcript, please see: Blog comments Attachment Document gross_v_smartsky.pdf (439.63 KB) Document in_re_wireless_systems_solutions.pdf (280.35 KB) Category Eastern District

Law Review N Ote: John Ellison, Disillusionment of Discharge: The FRESH START Through Bankruptcy Act, 40 Emory Bankr. Dev. J. 291 (2024). Ed Boltz Mon, 07/15/2024 - 18:20 Available at:   https://scholarlycommons.law.emory.edu/ebdj/vol40/iss2/4/ Abstract: Although its roots precede the twenty-first century, the student loan debt “issue” in America has evolved in recent years into a full-blown “crisis.” Recently surpassing credit cards and auto loans, student loan debt is the second-largest type of consumer debt in the United States, behind only mortgage debt. Prior to the Higher Education Amendments of 1976, bankruptcy provided an avenue through which student loan debt could be discharged. A series of legislative amendments, however, led to the imposition of 11 U.S.C. § 523(a)(8), which bars the discharge of student loan debt absent a showing of “undue hardship.” Courts have constructed the “undue hardship” standard into a major hurdle for student debtors seeking a fresh start through bankruptcy. For most courts, demonstrating “undue hardship” requires a debtor to satisfy three prongs of a strict elements test. Referred to by some in the judiciary as the “certainty of hopelessness” standard, the test has come under scrutiny in the legal community. Many, including federal judges, the American Bar Association, and the American Bankruptcy Institute, have called for reform to better effectuate the relief sought by student loan debtors. This Comment posits that the proposed FRESH START Through Bankruptcy Act of 2021 is the most viable solution to the student loan crisis and would address it in two primary ways. First, it would eliminate the need for student loan borrowers to satisfy the “undue hardship” standard, and would make discharge attainable—provided the debtor has already been in repayment for at least ten years. Second, it would address the underlying issues of “credentialism” and increased tuition costs, at least in part, through a “clawback” provision aimed to increase institutional accountability. Commentary: This law review note provides a very thorough history of student loans and bankruptcy before discussing the FRESH START through Bankruptcy Act introduced first in 2021 by Senators Durbin (D-IL),  Cornyn (R-TX) and Hawley (R-MO) and could serve as a primer and white paper for  efforts supporting that bi-partisan legislation. With proper attribution,  please share this post.  To read a copy of the transcript, please see: Blog comments Attachment Document disillusionment_of_discharge_the_fresh_start_through_bankruptcy_act.pdf (896.68 KB) Category Law Reviews & Studies

M.D.N.C.: Keller v. Experian- Reinvestigation by CRA under FCRA Ed Boltz Mon, 07/15/2024 - 18:14 Summary: Eric Keller initiated a lawsuit against Experian Information Solutions, Inc. ("Experian"), alleging willful and negligent violations of the Fair Credit Reporting Act (FCRA). The dispute arose after Keller financed a vehicle and later refinanced it through Truist Bank, which first sent duplicate payments to the original lienholder,  and,  after receiving a refund for one of those payments,   mistakenly credited his account and released the lien and refused to accept further payments.  Truist Bank  reported the loan as paid off, but then reported him as delinquent when the error was discovered. Mr.  Keller's attempts to correct his credit report,  including by sending dispute letters through his attorney,  were unsuccessful, leading to his filing a dispute with Experian. When that dispute also proved  unavailing,  Mr.  Keller  brought suit against Experian  alleging that it failed to conduct a reinvestigation ( or that any reinvestigation was unreasonable) and that it reported information it could not verify under the FCRA.  The district court  found that under its Suspicious Mail Policy (SMP),  Experian  may terminate a reinvestigation if a dispute letter appears to come from a third party.   In assessing the sufficiency of the complaint,  the district court held,  however,  that  Mr.  Keller's factual allegations, including sending a dispute letter authorized by him but through his attorney, support a reasonable inference that Experian's policy could lead to failure to comply with the FCRA.   As to the allegations that it had conducted an unreasonable Reinvestigation and reported unverifiable information,  the district court dismissed those causes of action,  holding  that FCRA only required Experian to conduct reasonable investigations regarding factual disputes.  Because  the Fourth Circuit "has  articulated its 'concern' about collateral attacks" against the underlying debt, see Saunders v. Branch Banking & Tr. Co. off Va., 526 F.3d 142 (4th Cir. 2008), the district court dismissed these causes of action as a legal and not factual dispute.  See also,  Perry. v. Toyota Motor Credit Corp.,  where the district court in the Western District of Virginia  held that inaccurate credit reporting of a debt discharged in bankruptcy  failed to state a claim under FCRA.   Still pending is Experian's motion for judgment on the pleadings,  as it argues that with the dismissal of the latter two causes of action,  the first cannot survive. Commentary: It also seems surprising in this case that Mr. Keller had completely separate and apparently unrelated attorneys than in his parallel case filed against Truist Bank and Equifax,  even though both were filed the same day.  Following a successful mediation,  however,  Truist,  Equifax and Mr.  Keller appears to have resolved their disputes,  with the case being dismissed after payment by Truist and/or Equifax of an undisclosed amount.   What is not surprising is that Experian seems to be primarily interested in either minimizing its own obligations (including and probably especially ignoring disputes filed through the assistance of an attorney) regarding reinvestigations or not questioning creditors,  rather than providing truly accurate credit reports,  let alone providing any protection to  consumers.  Perhaps this is why the federal government has found that one in five people have an error on at least one of their credit reports.  This may also be why it makes sense to bring FCRA suits first against the creditor for providing inaccurate  information and then only then (and with caution) against the CRA. It should be  noted that  Perry v.  Toyota Motor Credit Corp.  involved the rather complicated and arcane  bankruptcy question of whether the assumption of a lease   in a bankruptcy case also  reestablished personal liability for that debt without a separate reaffirmation agreement.  (There Perry would have likely benefited from first seeking a clarifying order of judgment from the bankruptcy court and then including such in the FCRA dispute.)  The question here of whether Truist  accurately reported  a delinquency, after its own mistakes led it to refuse to accept payments,  certainly appears less complicated and completely factual.    Also not surprising is that , while courts and Congress overwhelmingly prefer that most disputes  be handled through the less judicial avenue of arbitration rather than lawsuits,  the non-judicial mechanism for resolving credit report  errors under the FCRA is so disfavored that only the most patently factual disputes are covered,  leaving consumers with the slower and more expensive course of first seeking judicial findings of fact such that Experian and other recalcitrant credit reporting agencies must even perform the slightest of reinvestigations. With proper attribution,  please share this post.  To read a copy of the transcript, please see: Blog comments Attachment Document keller_v._experian.pdf (215.02 KB) Document keller_v._truist_notice_of_settlement.pdf (131.93 KB) Document keller_v._truist_mediators_report.pdf (394.24 KB) Document keller_v._experian_memorandum_of_law_in_support_of_motion_for_judgment_on_the_pleadings.pdf (169.79 KB) Document keller_v._experian_plaintiffs_opposition_to_defendants_motion_for_judgment.pdf (263.56 KB) Category Middle District