Second Circuit — Fair Credit Reporting Act: Longman v. Wachovia Bank NA

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U.S. Court of Appeals for the Second Circuit

Fair Credit Reporting Act

Private Right of Action

Longman v. Wachovia Bank NA
11-4225-cv
Judges Sack, Chin and Lohier

Background: The plaintiff appealed from the dismissal of his Fair Credit Reporting Act claims. The plaintiff, an experienced real estate developer, had purchased land in Florida, which he financed with a note from the defendant by a mortgage. The plaintiff failed to make a payment when the balloon payment became due. The defendant had informed credit reporting agencies while the plaintiff continued to make interest payments during the pendency of a short sale on the property. The defendant argued that the dispute had never been submitted to a credit reporting agency and the plaintiff never moved to amend its complaint, nor was there a private right of action under section 1681s-2(a).

Ruling: The Second Circuit affirmed. The Second Circuit held that the statute plainly provides that federal and state agencies have the exclusive power to enforce the provisions of section 1681s. Further, the district court did not err by sua sponte denying leave to amend the complaint as the plaintiff had ample warning that he would need to amend his deficient complaint.

Mark Stern and Marc T. Miller of Mark Stern & Associates for the plaintiff-appellant; David M. Bizar of Seyfarth Shaw for the defendant-appellee