995 F.3d 937
11th Cir.2021Background:
- In 2012 Losch obtained a mortgage; he filed Chapter 7 in 2017 and later rescinded a reaffirmation, and the bankruptcy court discharged his mortgage obligation.
- Experian continued to report a Nationstar mortgage on Losch’s credit report showing a large balance and 180+ days delinquent, despite the bankruptcy discharge.
- In June 2018 Losch disputed the entry with Experian, which sent an ACDV to Nationstar; Nationstar confirmed the debt and Experian did not independently verify the bankruptcy docket or other court records.
- Experian did not correct the report until February 2019, after litigation began; Losch sued under the FCRA §§ 1681e(b) and 1681i(a) for unreasonable procedures and unreasonable reinvestigation, alleging negligent and willful violations.
- The district court granted Experian summary judgment, holding an ACDV to the furnisher satisfied the statute; the Eleventh Circuit reviewed standing and the reasonableness of Experian’s procedures.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | False reporting to third parties and emotional/time harms suffice as a concrete injury | No concrete injury shown; reports were soft inquiries and damages speculative | Court: Losch has standing based on false reports to third parties and his emotional/time evidence (affidavit suffices) |
| Accuracy of reporting | Report was factually inaccurate because it stated balances, delinquencies, and 180+ days late after discharge | Bankruptcy discharge doesn’t expunge debts; reporting existence of debt was permissible | Court: Reporting balances and delinquencies post-discharge was factually inaccurate |
| Reasonableness of procedures/reinvestigation (§1681e/§1681i) | Experian’s sole reliance on an ACDV response from Nationstar, without independent checks (e.g., bankruptcy docket), was unreasonable given the dispute details | Industry practice permits contacting the furnisher by ACDV; no obligation to resolve underlying legal disputes | Court: Whether Experian’s limited steps were reasonable is a jury question; summary judgment improper (vacated in part) |
| Willfulness (§1681n) | Experian acted knowingly or recklessly by failing to investigate further | Experian’s approach was a reasonable interpretation supported by precedent; at most negligent | Court: No willfulness shown; summary judgment for Experian on willfulness affirmed |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. 2016) (standards for concrete injury in Article III analysis)
- Pedro v. Equifax, Inc., 868 F.3d 1275 (11th Cir. 2017) (FCRA intangible-harm analogy to defamation and standing)
- Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151 (11th Cir. 1991) (elements for §1681e and reasonableness inquiry)
- Collins v. Experian Info. Sols., Inc., 775 F.3d 1330 (11th Cir. 2015) (similar facts; reasonableness of relying solely on furnisher is a jury question)
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (U.S. 2007) (standard for willfulness and reckless violations under FCRA)
- Sarver v. Experian Info. Sols., 390 F.3d 969 (7th Cir. 2004) (CRA need not verify every furnisher report absent reason to doubt it)
- Henson v. CSC Credit Servs., 29 F.3d 280 (7th Cir. 1994) (once specific inaccuracy is pointed out, CRA is in a different position and may need to investigate)
- Cushman v. Trans Union Corp., 115 F.3d 220 (3d Cir. 1997) (reasonableness requires targeted reinvestigation of pinpointed inaccuracies)