Today's Trends in Credit Regulation

FCRA Statute of Limitations Starts Anew with Each Dispute
By L. Jean Noonan

It is a bummer to be in jail. It is no doubt a bigger bummer to be in jail and have your identity stolen by someone on the outside.

RBS Citizens Bank, N.A., and Merrick Bank Corporation received automated dispute notices from Equifax that a credit card customer with a delinquent account was claiming the account was not his. Both banks confirmed the accuracy of the information and notified the consumer reporting agency. Equifax, in turn, notified the consumer, Gregory Marcinski, that the information was confirmed as his and that it would retain the accounts in his file. More than two years later, Marcinski again disputed the accounts, with the same results.

Marcinski, a pretty good jailhouse lawyer (literally - Marcinski was incarcerated when the accounts were opened and was still in the pen when he filed suit), didn't give up. He sued both banks for violating the Fair Credit Reporting Act by failing to conduct a reasonable investigation and failing to correct his file, based on the second disputes. The banks moved to dismiss his suit as time barred. The banks contended that the statute of limitations began to run either when Marcinski first discovered the fraudulent accounts or when he learned that the banks verified the accuracy of the accounts following his first disputes.

The U.S. District Court for the Southern District of New York disagreed. The court held that each separate dispute triggered a duty to investigate, regardless of whether the information had been previously disputed. Therefore, the statute of limitations began to run when Marcinski learned that the banks had re-verified the accuracy of the information following his second round of disputes. The court acknowledged that courts are split on this issue, but it concluded that the FCRA's language and Congressional intent support its conclusion that each failure to investigate and each re-report of false information constitutes a separate violation. Because Marcinski's second disputes were within the FCRA's 2-year statute of limitations, the court declined to dismiss his suit.

So, here is a "best practice" tip. If a consumer disputes an item you have already verified, you have two options:

(1) You can investigate it again, carefully considering any new information the consumer may provide; or

(2) You can treat the second dispute as frivolous or irrelevant and notify the consumer within five days why you consider the dispute to be frivolous or irrelevant and tell the consumer what additional information you need in order to investigate the item again.

A not-so-great choice is to repeat an inadequate investigation and hope you can get the case dismissed on a statute of limitations defense. Courts are increasingly willing to hold that the limitations clock starts anew with each dispute.

Marcinski v. RBS Citizens Bank, N.A., 2014 U.S. Dist. LEXIS 61639 (S.D.N.Y. May 2, 2014).

L. Jean Noonan is a partner in the Washington, D.C. office of Hudson Cook, LLP. Jean can be reached at 202-327-9700 or by email at

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