Credit reporting agencies typically report bankruptcy information for a period of ten (10) years. This, however, does not mean that your credit rating will remain low for that entire time. Credit scoring takes into account the age of derogatory information, and discounts the value of that information the older it is. Therefore, the more time that passes the less important the bankruptcy will be to your credit score.
It is important to review your credit reports at least every six months to ensure that no incorrect information appears on the reports. For people who went through bankruptcy, the most common error involves creditors failing to update their reporting to indicate that the debt was discharged in bankruptcy and has $0 due.
These errors can be addressed a number of different ways, the most reliable one being through the provisions of the Fair Credit Reporting Act. The requirements for a dispute to be processed properly are very strict, but a failure on the part of the creditor to properly update the report once the errors is brought to its attention can result in a claim for a violation of the bankruptcy discharge, Fari Credit Reporting Act, and a variety of state laws.
If you enjoyed this post, make sure you subscribe to my RSS feed!
A question continually comes up as to whether a debtor is forced to turn to the bankruptcy courts when a creditor violates the Fair Credit Reporting Act with respect to a discharged debt or whether the doors of the District Court remain open.
The leading case, cited by virtually every creditor when faced by this question, is Walls v. Wells Fargo, N.A., 276 F.3d 502 (9th Cir. 2002).
Walls held that a debtor could not make a claim for a violation of the Fair Debt Collection Practices Act as well as for a violation of the bankruptcy discharge. The court determined that the FDCPA and the Bankruptcy Code do not co-exist but rather that the Bankruptcy Code pre-empted the FDCPA.
Over time, Walls has been distinguished and chipped away by many courts, including those in the 9th Circuit. The recent case of Wakefield v. Cavalry Portfolio Services, LLC., Case No. 06-CV-1066-BR (USDC Oregon 2006) continues that trend by holding that the Fair Credit Reporting Act and the US Bankruptcy Code co-exist.
In Wakefield, the debtor sued a creditor that had repeatedly obtained copies of her credit report after her bankruptcy discharge. The basis of the lawsuit was 15 U.S.C. § 1681q, which provides that “Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined under Title 18, imprisoned for not more than 2 years, or both.”
The court, relying on In re Miller, No. 01-02004, 2003 WL 25273851, at *2 (D. Idaho Aug. 15, 2003) as well as the holding of the U.S. Bankruptcy Court for the Eastern District of Virginia in In re Potes, 336 B.R. 731, 733 (E.D. Va. 2005), held that the FCRA and the Bankruptcy Code co-exist, and that the same act could give
rise to remedies under both FCRA and the Bankruptcy Code.
You can read the entire decision in Wakefield v. Cavalry Portfolio Services, LLC., Case No. 06-CV-1066-BR (USDC Oregon 2006) by clicking here.
If you enjoyed this post, make sure you subscribe to my RSS feed!
