Capital One Can’t Shake Suit for Unauthorized Credit Report Pull

Capital One Bank USA NA will face a reinstated claim under the Fair Credit Reporting Act after the Ninth Circuit ruled that obtaining a credit report without authorization is a sufficient injury to confer standing to sue.

The plaintiff, Freshta Nayab, didn’t have to allege the nefarious reason for pulling her credit report in order to show a concrete injury, the U.S. Court of Appeals for the Ninth Circuit said Oct. 31.

The trial court erred in placing the burden of pleading Capital One’s actual unauthorized purpose on Nayab, the appeals court said.

Capital One instead had the burden of pleading that it had an authorized purpose to acquire Nayab’s credit report, the court said.

Nayab discovered in June 2016 that Capital One made several inquiries on her Experian credit report. She sued in December 2016, alleging that Capital One’s violation caused her credit score to drop.

Nayab alleged the inquiries violated the FCRA because she never conducted any business with or incurred any financial obligations to Capital One.

Nayab’s amended complaint cited various permissible purposes for obtaining a credit report under the FCRA and alleged that Capital One did not have any of those permissible purposes to make inquiries on her credit report.

The complaint was silent as to Capital One’s actual purpose for making the inquiries on her credit report.

In a partial dissent, Judge Johnnie B. Rawlinson agreed Nayab had standing to sue, but found she didn’t state a plausible claim. Nayab only offered conclusory allegations, he said.

The majority improperly shifted the burden to Capital One to show that it had an authorized purpose for pulling Nayab’s credit report, Rawlinson said.

Judge Thomas O. Rice wrote the opinion, joined by Judge Carlos T. Bea.

The Jami Law Firm and Mashiri Law Firm, APC represent Nayab. Doll Amir & Eley LLP represents Capital One.

The case is Nayab v. Capital One Bank (USA), NA, 9th Cir., No. 17-55944, 10/31/19.