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Thursday, August 6, 2009

New FCRA case - Wimberly v. Select Portfolio Servicing

I am behind on my reporting about the new court opinions being handed down regarding the FCRA but am going to focus on catching up over the weekend.

One new case that I have not reported on yet is Wimberly v. Select Portfolio Servicing. The opinion is penned by Magistrate Judge Wallace W. Dixon of the United States District Court for the Middle District of North Carolina. Once again, the plaintiffs are representing themselves pro se (meaning without a lawyer) and, once again, the result is the same - a loss for the plaintiffs. Although, I feel less harsh toward these particular pro se plaintiffs since I have looked for local counsel in North Carolina experienced in FCRA litigation and have found none to date. So these plaintiffs may have had no other choice (other than move or hire out of state counsel, which they might not have known they could do).

Anyway, the plaintiffs, a Griggs and Aubrey Wimbley, filed a 93 page amended complaint which the Court described as "disorganized, rambling and at times incoherent". The plaintiffs' main beef with Select Portfolio Servicing ("SPS") appears to center around the manner in which SPS applied payments and otherwise handled the plaintiffs' loan. While the Wimbleys brought multiple claims, I will only discuss their FCRA claims which, unfortunately for the Wimbleys, the Court found were time barred.

Claims under the FCRA must be filed no later than 2 years after the plaintiff discovers a violation or 5 years after the violation even if the plaintiff doesn't even know the violation occurred. It used to be a strict 2 year statute of limitations no matter what, but that changed after Congress amended the FCRA after the first FCRA case to make it to the U.S. Supreme Court, i.e. TRW v. Andrews, which held that the 2 year statute of limitations ran regardless of whether the plaintiff knew about the alleged violation. Congress rightfully did not like this result so it changed the law to eliminate the Supreme Court's interpretation in Andrews.

But I digress. The Court in Wimbley found that the plaintiffs knew about the alleged violations by SPS as early as 2002 and thus claims to recover for those violations were barred by the FCRA's statute of limitations.

Right result in a case that should not have been brought, which is another reason why the plaintiffs were probably representing themselves.

Word of advice to potential pro se plaintiffs: Its one thing to bring a case yourself because you can't find a lawyer competent to represent you. Its another matter entirely when there are plenty of competent attorneys but they all refuse to take your case. In that scenario, its probably because your case is a loser.

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