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Tuesday, June 16, 2009

New FCRA case - Tobler v. Equifax and Auto Club Insurance Agency

District Judge Denise Page Hood issued a new opinion in a new Fair Credit Reporting Act case from the United States District Court for the Eastern District of Michigan, Southern Division. The case is styled Tobler v. Equifax and Auto Club Insurance Agency and was released on May 27, 2009.

This case makes clear yet again that it is foolish for consumers to represent themselves, especially in the complicated field of Fair Credit Reporting Act litigation. The pro se plaintiff (pro se means the plaintiff represented himself) filed a lawsuit against Equifax, ChoicePoint and Auto Club Insurance Agency (a.k.a. AAA). The claims against Equifax and ChoicePoint were for violating the FCRA for failing to correct errors on Tobler's credit report. The Court's opinion, however, focuses on Tobler's claims against Auto Club Insurance Agency, which Tobler claimed overcharged him based upon the erroneous credit reporting of Equifax and/or ChoicePoint.

The problem is that, even if the plaintiff's allegations agaisnt Auto Club Insurance Agency are 100% factually accurate, there still is no valid claim under the FCRA. The only duty of a user of a consumer report in relation to an adverse action is to give the required notice to the consumer who suffered the adverse action. This duty is found in 15 U.S.C. 1681m. Moreover, there is no private cause of action under 1681m because that right was taken away when the FCRA was amended a few years ago. Now, only certain governmental agencies have a right to sue for a violation of 15 U.S.C. 1681m. Consumers no longer have that right.

Thus, the plaintiff's claims against Auto Club Insurance Agency were doomed to fail, even if the plaintiff's last ditch effort to amend his complaint to add a claim under 15 U.S.C. 1681m had been granted. The Court correctly ruled that Tobler's claims against Auto Club Insurance Agency should be dismissed and granted Auto Club's motion to dismiss.

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