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Gillespie v. Equifax Information Services

September 15, 2008

HEATHER GILLESPIE AND ANGELA CINSON, INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED INDIVIDUALS, PLAINTIFFS,
v.
EQUIFAX INFORMATION SERVICES, LLC, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Heather Gillespie and Angela Cinson have sued Equifax Information Services, LLC (Equifax) on behalf of themselves and all others similarly situated. Plaintiffs allege in their fourth amended complaint that Equifax violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681g(a)(1), by failing to disclose clearly and accurately all the information in the consumer files of persons with reported delinquent credit accounts. This case is before the Court on Equifax's motion for summary judgment based on the Supreme Court's decision in Safeco Ins. Co. of Am. v. Burr, 127 S.Ct. 2201 (2007). For the following reasons, the Court denies Defendant's motion.

Background

Because Equifax has moved for summary judgment, the Court views the facts in the light most favorable to plaintiffs and draws reasonable inferences in their favor. See Nat'l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).

Equifax is a consumer reporting agency (CRA) that gathers positive and negative consumer credit information from outside creditors and sells it to businesses in connection with credit transactions. Since at least 1995, Equifax has been a member of the Consumer Data Industry Association (CDIA) or its predecessor, the Associated Credit Bureaus (ACB). Equifax's reporting and collection practices are regulated by the FCRA, which Congress amended in 1996, although the amendments did not take effect until 1997. The amendments specified that the seven-year period during which information about a consumer's delinquent account may be disclosed to businesses must begin six months after "the date of commencement of the delinquency which immediately preceded the collection activity, charge to profit and loss, or similar action."

15 U.S.C.§ 1681c(c)(1).

After the amendments, the ACB created a standardized data reporting format called the Metro 2 format. Pl. Add'l Facts ¶ 16. Field 25 of the Metro 2 format is labeled "FCRA/Date of First Delinquency." Id. ¶ 21. An entity that notifies Equifax (or any other CRA) of a delinquent account must provide, within ninety days, the date of first delinquency on the account, which is "the month and year of the commencement of the delinquency on the account that immediately preceded the action." 15 U.S.C. § 1681s-2(a)(5)(A). Equifax stores this date internally in a field in a consumer's credit file labeled "DFD/DLA", with "DFD" referring to the "Date of First Delinquency." Pl. Add'l Facts¶¶ 22-23 & Ex. 14A.

In disclosing information to a consumer who requests it, however, Equifax does not identify, as such, the "Date of First Delinquency" or "DFD." Rather, it uses the term "Date of Last Activity." Id. ¶ 11. Specifically, when a consumer requests disclosure of a file that contains a "Date of First Delinquency" in Equifax's internal database, Equifax transfers the information from that field onto a field in the disclosure form entitled "Date of Last Activity." Id. ¶ 27. Equifax provides credit grantors with this information in the same format, that is, in a field entitled "DLA" or "Date of Last Activity." Def. LR 56.1 St. ¶ 26. The "Date of Last Activity" terminology is the same terminology that Equifax used in disclosing information to consumers prior to the 1996 amendments to the FCRA. Pl. Add'l Facts ¶ 15. It continued to use that term even after the amendments; it did not modify the format of the files it discloses to consumers to include a field labeled "Date of Delinquency," "Date of First Delinquency", "FCRA/Date of First Delinquency," or that otherwise mentioned delinquency or anything like it. Id. ¶ 8.

Both Cinson and Gillespie opened and, later, defaulted on credit accounts, Cinson on a Sears account and Gillespie on a Direct Merchants Bank account. Cinson's Sears account became delinquent in late 1996 or early 1997. Although Sears "charged-off" the debt in late 1997, it treated the delinquency as cured after Cinson made payments on the account in 1998.*fn1 When Cinson's account fell into delinquency for a second time, Sears sold it to Sherman Acquisitions Company (Sherman), a collection agency. On January 7, 2004, Equifax sent Cinson the contents of her credit file at her request. The file listed the "Date of Last Activity" on the Sears and Sherman accounts as October 1998. Pl. Ex. 24 at 3, 6. The field marked "Date Maj. Del 1st Rptd" was blank for both the Sears account and the Sherman account. Id.

Direct Merchants sold Gillespie's account to Sherman after it became delinquent in 2001. On December 2, 2004, at Gillespie's request, Equifax sent Gillespie the contents of her credit file. The file she received listed the "Date of Last Activity" on the Direct Merchants account as July 2001 and on the Sherman account as September 2001. Pl. Ex. 23 at 4, 6. As was the case in Cinson's file, the field marked "Date Maj. Del 1st Rptd" in Gillespie's file contained no entry for either account. Id.

With each file, Equifax included an explanatory insert entitled "Facts You Should Know," which states, Payment history on your credit file is supplied by credit grantors with whom you have credit. This includes both open accounts and accounts that have already been closed. Payment in full does not move your payment history. The length of time information remains in your credit file is shown below: Collection Accounts: Remain for 7 years Credit Accounts: Accounts paid as agreed remain for up to 10 years.

Accounts not paid as agreed remain for 7 years. (The time periods listed above are measured from the date in your credit file shown in the "date of last activity" field accompanying the particular credit or collection account.)

Pl. Ex. 23 at 11. Equifax did not provide, however, any explanation of what the "Date of Last Activity" field signified. Specifically, it gave no indication whether, or to what extent, the "last activity" in an account had ...


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