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Eric Robert v. Equifax Information

August 7, 2012

ERIC ROBERT DREW, PLAINTIFF-APPELLANT,
v.
EQUIFAX INFORMATION SERVICES, LLC; EXPERIAN INFORMATION SOLUTIONS, INC.; BANK OF AMERICA HOME LOANS; FLEET CREDIT CARD SERVICES; CITIGROUP; BANK ONE CARDMEMBER SERVICES; FIRST USA BANK, N.A.; AT&T UNIVERSAL CARD SERVICES; CITIBANK (SOUTH DAKOTA) N.A., DEFENDANTS, AND CHASE BANK USA; FIA CARD SERVICES, N.A., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding D.C. No. 3:07-cv-00726-SI

The opinion of the court was delivered by: McKEOWN, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted April 20, 2012-San Francisco, California

Before: M. Margaret McKeown and N. Randy Smith, Circuit Judges, and Roger T. Benitez, District Judge.*fn1

Opinion by Judge McKeown

OPINION

This case lends credence to the old adage that bad things come in threes. Eric Drew is a cancer survivor, who required experimental leukemia treatment. During his treatment, Drew's identity was stolen by a hospital worker. Finally, when Drew attempted to remedy the identity theft, the banks and credit rating agencies were allegedly uncooperative, and continued to report the fraudulently opened accounts, and in the case of one bank, the thief's address was tagged as Drew's.

The district court granted summary judgment in favor of Chase Bank on Drew's false-reporting claims under the Fair Credit Reporting Act, 15 U.S.C. § 1681s-2(b) (FCRA). Because issues of material fact remain as to Chase's alleged violations of the FCRA, we reverse the judgment as to these claims. We also reverse the district court's dismissal of similar claims against FIA Card Services ("FIA") on statute of limitations grounds. We affirm the denial of Drew's motion to amend to reinstate his claims under California law.

BACKGROUND*fn2

Nearly a decade ago, in September 2003, Eric Drew began receiving experimental treatment for leukemia in Seattle. After this treatment was unsuccessful, Drew was hospitalized in Minnesota from July 2004 to January 2005 for an experi- mental program that proved effective.*fn3 Soon after starting his treatment in Seattle, Drew received letters and calls from banks and other financial institutions, which initially thanked him for recent credit application requests, but soon began demanding payments on Seattle-based accounts he had never opened. Drew filed a police report alleging identity theft with the police department in Santa Clara, California, where he resided. The identity thief, who was a phlebotomist at a Seattle hospital, was arrested and convicted a few months later, after news media publicized Drew's predicament.

Unfortunately for Drew, his saga was not at an end. Drew had to close bank accounts, block credit reporting, and get Automated Consumer Dispute Verification forms (ACDVs) issued to various banks that furnished information regarding the fraudulent accounts the thief had opened. Drew's claims relate to only two actors in this credit dispute: Chase Bank and FIA Card Services.

I. INTERACTIONS WITH CHASE

Along with other banks, Chase sent a letter to Drew at his California address thanking him for applying for the credit card, and issued him a card on November 12, 2003. Drew called Chase to dispute the account in late November 2003. A fraud department employee informed Drew that the account had not yet been opened or reported, and that Chase would contact other issuing banks and credit reporting agencies ("CRAs") so that Drew would not be associated with the fraudulent Seattle address and the fraudulent accounts. Chase immediately closed the account and reported it to the credit agencies as lost or stolen. It is undisputed that as a result, no charges could be added to the account. Chase also faxed a copy of the fraudulent application to the police.

In the meantime, Drew reviewed his credit report in mid-January 2004. He discovered multiple fraudulent accounts had been opened in his name. On January 20, 2004, he contacted various CRAs to report the fraudulent accounts. The next day, TransUnion, one of the credit agencies, deleted various accounts, including the Chase account, from its credit file. TransUnion also forwarded a block notice communication to the various banks, including Bank One, Chase and Citibank, advising them that the accounts were presumed to be fraudulent and that the banks must contact the consumer and take measures to block any future reporting of the accounts. Chase did not take any action in response to the block notice from TransUnion. The remaining banks blocked reporting of the account.

In early 2005, Drew returned to California, ordered and obtained an Old Republic Credit Services credit report ("Old Republic Report"), and discovered that Chase had continued to report the account as lost or stolen in Fall 2004. He again complained to the CRAs. The second time was the charm: Chase deleted the account in February 2005, and sent a notice to the CRAs to delete the account. However, in October 2005, Chase also followed up with letters sent to the thief's address with the account number, and allegedly re-reported the identity thief's Seattle address as Drew's address.

II. INTERACTIONS WITH FIA

FIA first issued a card in Drew's name on January 6, 2004, and so did not receive the January 21, 2004 TransUnion block notice.*fn4 Drew wrote to TransUnion to dispute the FIA account on March 4, 2004. TransUnion forwarded notice of the dispute to FIA on March 8, 2004; FIA received the dispute on March 11, and verified the account the very next day. Drew claims he was not aware, until January 2005, of FIA's investigation and verification of the account, nor that the account was still being reported to CRAs.

In April and May 2004 Drew received several collection calls and account statements from FIA concerning the fraudulent account; he called FIA on April 21, May 6 and July 14, 2004, to dispute the account as fraudulent. In May, FIA informed Drew that an investigation had begun, but that the account could not be closed pending investigation. In a July 14 conversation with FIA, Drew alleges that he was promised that collection efforts would stop, the fraudulent account would be deleted, and all records corrected if he completed a fraud affidavit form and sent it to the bank. FIA received the fraud affidavit from Drew on July 19, 2004 and closed the account on July 28, 2004, crediting the charges.

From July 2004 to January 2005, Drew was hospitalized in Minnesota. Upon reviewing the Old Republic Report, Drew discovered that the FIA account was reported as a derogatory item, and his credit score had been affected. Drew disputed the account again. FIA discontinued reporting the account in October 2005, but one CRA continued reporting the account. Drew disputed it once more, but FIA again verified the account as belonging to Drew with the thief's address as Drew's former address. ...


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