On March 17, the U.S. Court of Appeals for the Ninth Circuit
affirmed a district court’s grant of summary judgment in favor of a defendant law firm that allegedly accessed a plaintiff’s credit report to obtain her current address after it was hired to collect unpaid homeowner association (HOA) assessments. The plaintiff filed a class action lawsuit claiming, among other things, that the defendant violated the FCRA by accessing her credit report without her consent and that neither the HOA nor the defendant are creditors within the meaning of the FCRA. The district court
disagreed, concluding that the HOA was in fact a creditor for purposes of the FCRA. “Under the [a]greement, the HOA determines the assessment amount for a full year and then makes it payable in installments over the course of the year. Thus, it regularly extends credit,” the district court wrote, explaining that because the HOA is a creditor, its attorneys, in collecting on the account, have the right to review a consumer’s credit report without consent. Moreover, the district court determined that the defendant had established the requisite “direct link” between the credit transaction and its request for the plaintiff’s credit report.
The 9th Circuit concluded that the “[d]efendant’s reading of the statute was not objectively unreasonable” because the plaintiff “had a grace period during which she could receive half a month’s services that she had not yet paid for,” which “could be considered an extension of credit.” While concurring with the panel, one of the judges commented, however, that “[i]t is hard to imagine that Congress intended FCRA, a statute that protects consumer privacy, to empower HOAs composed of neighboring homeowners to run their neighbors’ credit reports if homeowners fall two weeks behind in their payments.” The judge recommended that the appellate court “revisit the issue,” noting that it is unclear under current case law whether an HOA assessment qualifies as a “credit transaction” under the FCRA.
