BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 1220 (Skinner)
          As Amended May 20, 2013
          Hearing Date:  June 18, 2013
          Fiscal:  Yes
          Urgency:  No
          TH


                                        SUBJECT
                                           
                      Consumer Credit Reporting: Adverse Action

                                      DESCRIPTION  

          This bill would make it unlawful for a consumer credit reporting  
          agency to prohibit, dissuade, or attempt to dissuade, the user  
          of a credit report generated by a credit reporting agency from  
          providing a copy of the report to a consumer upon request, if  
          the user has taken adverse action against the consumer based on  
          the report.  This bill would also authorize the Attorney General  
          and other specified public prosecutors to bring an action for a  
          civil penalty not to exceed $5,000 against any credit reporting  
          agency that violates the above provision.

                                      BACKGROUND  

          Credit reports play an increasingly important role in the lives  
          of California's consumers.  Most, if not all, decisions to grant  
          consumer credit rely on information contained in these reports.   
          Generally, users of credit reports analyze the information they  
          contain to assess the financial risk posed by individual credit  
          applicants, and often transform this information using  
          sophisticated predictive models into individualized "credit  
          scores."  For some consumers, the acceptance or rejection of an  
          application for a mortgage, auto loan, credit card, or student  
          loan may be decided on the basis of a credit score.  For others,  
          the terms or pricing of a credit or insurance product may be set  
          according to one's credit rating through a practice known as  
          "risk-based pricing."  (Federal Trade Commission, December 2012  
          Report to Congress Under Section 319 of the Fair and Accurate  
          Credit Transactions Act of 2003  
                                                                (more)



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           [as of June  
          10, 2013] p. 5 [hereinafter "December 2012 FTC Report"].)  Yet  
          for others still, a decision to extend an offer of employment  
          could depend on the contents of a credit report.  Given their  
          extensive use in the marketplace, the accuracy and completeness  
          of the information contained in a credit report is important to  
          both California's consumers and to the functioning of the  
          State's economy.
          At their core, credit reports provide lenders with detailed  
          information about a particular borrower's credit history so they  
          can more precisely estimate the risk that a borrower will  
          default, allowing lenders to tailor interest rates and other  
          loan terms according to a borrower's risk.  Yet despite their  
          importance in assessing creditworthiness, a number of studies  
          have highlighted the high rates of errors contained in consumer  
          credit reports.  A recent study published by the Federal Trade  
          Commission found that 26 percent of the consumers studied  
          identified at least one potentially material error on their  
          credit report, and that after going through a dispute process  
          with a consumer credit reporting agency, 13 percent of the  
          consumers studied had modifications made to at least one credit  
          report that resulted in a change to their credit score.   
          (December 2012 FTC Report, pp. 35, 42.)  For over five percent  
          of the consumers studied, the resulting increase in credit score  
          was of such significance that their assigned credit risk tier  
          decreased (using FICO Auto Loan thresholds), meaning that the  
          consumer was more likely to be offered a lower interest rate on  
          an automobile loan.  (December 2012 FTC Report, p. 47.)  The  
          Federal Trade Commission estimates that for individuals with  
          credit histories, "at least 24 [percent] of credit reports  
          potentially contain errors and approximately 19 [percent] of  
          reports may contain errors that are material."  (December 2012  
          FTC Report, p. 63.)

          Existing law includes several safeguards designed to protect the  
          integrity of the data contained in a consumer credit report.   
          The California Consumer Credit Reporting Agencies Act (Civ. Code  
          Sec. 1785.1 et seq.) and the Federal Fair Credit Reporting Act  
          (15 U.S.C. Sec. 1681 et seq.) both impose an affirmative duty on  
          consumer credit reporting agencies to "follow reasonable  
          procedures to assure maximum possible accuracy" when preparing a  
          consumer credit report.  (Civ. Code Sec. 1785.14(b); 15 U.S.C.  
          1681e(b).)  The Consumer Credit Reporting Agencies Act also  
          provides that consumer credit reporting agencies shall, upon a  
          consumer's request, make available for inspection by the  
          consumer all files maintained regarding that consumer, and shall  
                                                                      



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          supply either a decoded written version or a written copy of the  
          file maintained regarding that consumer.  (Civ. Code Secs.  
          1785.10(a), 1785.15(a)(1).)  Both acts restrict a consumer  
          credit reporting agency from prohibiting the user of a credit  
          report, such as a bank considering whether to approve a mortgage  
          application, from disclosing the contents of the report to the  
          consumer who is the subject of the report when adverse action is  
          taken against the consumer on the basis of the report. (See Civ.  
          Code Sec. 1785.14(c); 15 U.S.C. 1681e(c).)

          These safeguards - and particularly the requirement against  
          prohibiting access to a credit report in the wake of adverse  
          action - ensure that California consumers have access to  
          collected credit information pertaining to them, allowing the  
          consumer to confirm its authenticity and accuracy.  Despite  
          these statutory safeguards, the author has found instances where  
          contracts entered into between consumer credit reporting  
          agencies and their clients have contained restrictive language  
          that could be interpreted as discouraging or restricting the  
          ability of users to share credit information with adversely  
          affected California consumers.

          This bill would expand existing law by making it unlawful not  
          only to prohibit credit report users from providing copies of  
          the report to adversely affected consumers, but also for a  
          consumer credit reporting agency to dissuade or attempt to  
          dissuade a user from furnishing a copy of the report upon a  
          consumer's request when the user takes adverse action against  
          the consumer based upon the report.  This bill would also create  
          a new civil penalty provision authorizing the Attorney General,  
          among others, to seek a penalty of up to $5,000 for a violation  
          of the above provision.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the California Consumer Credit Reporting Agencies  
          Act (Civ. Code Sec. 1785.1 et seq.) and the Federal Fair Credit  
          Reporting Act (15 U.S.C. Sec. 1681 et seq.), require consumer  
          credit reporting agencies to adopt reasonable procedures for  
          meeting the needs of commerce for consumer credit, personnel,  
          insurance, hiring of a dwelling unit, and other information in a  
          manner which is fair and equitable to the consumer, with regard  
          to the confidentiality, accuracy, relevancy, and proper  
          utilization of such information.  (Civ. Code Sec. 1785.1(d); 15  
          U.S.C. Sec. 1681(b).)

                                                                      



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           Existing law  states that whenever a consumer credit reporting  
          agency prepares a consumer report, it shall follow reasonable  
          procedures to assure maximum possible accuracy of the  
          information concerning the individual about whom the report  
          relates.  (Civ. Code Sec. 1785.14(b); 15 U.S.C. 1681e(b).)

           Existing law  provides that consumer credit reporting agencies  
          shall, upon a consumer's request, make available for inspection  
          by the consumer all files maintained regarding that consumer at  
          the time of the request.  (Civ. Code Sec. 1785.10(a), (b); 15  
          U.S.C. Sec. 1681g.)

           Existing law  provides that a consumer's credit file shall  
          include, as specified, the names and addresses of all sources of  
          the information in the file, the names (or, if applicable, the  
          fictitious business names) of the recipients of the information,  
          the names of any party making a credit inquiry about the  
          consumer, and, if requested by the consumer, the addresses of  
          the recipients and the parties making inquiry.  (Civ. Code Secs.  
          1785.10(b)-(e); 15 U.S.C. 1681g.)

           Existing law  further provides that a consumer credit reporting  
          agency shall supply either a decoded written version or a  
          written copy of the file maintained regarding that consumer,  
          including all information in the file at the time of the  
          request, with an explanation of any code used.  (Civ. Code Sec.  
          1785.15(a)(1).)

           Existing law  states that no consumer credit reporting agency may  
          prohibit any user of any consumer credit report furnished by the  
          consumer credit reporting agency from disclosing the contents of  
          the consumer credit report to the consumer who is the subject of  
          the report if adverse action may be taken by the user based in  
          whole or in part on the consumer credit report.  (Civ. Code Sec.  
          1785.14(c); 15 U.S.C. 1681e(c).)
           This bill  would make it unlawful for a consumer credit reporting  
          agency to prohibit in any manner, including, but not limited to,  
          in the terms of a contract enforceable in the state, or to  
          dissuade or attempt to dissuade, a user of a consumer credit  
          report furnished by the credit reporting agency from providing a  
          copy of the consumer's credit report to the consumer, upon the  
          consumer's request, if the user has taken adverse action against  
          the consumer based in whole or in part upon information in the  
          report.

           This bill  would also authorize the Attorney General and other  
                                                                      



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          specified public prosecutors to bring an action for a civil  
          penalty not to exceed $5,000 against any credit reporting agency  
          that violates the above provision.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
               Credit reports describe consumers' credit worthiness and  
               detail their credit history.  These reports are requested  
               by banks when consumers apply for loans, by credit card  
               companies when consumers apply for credit cards, by  
               landlords when consumer apply for housing, and by employers  
               when consumer apply for  jobs.  Due to the scope and  
               significance of credit reports, it is vital that reports  
               are accurate and that consumers see complete versions of  
               their credit reports to verify their accuracy.   
               Regrettably, according to a recent study by the Federal  
               Trade Commission, 40 million Americans report inaccuracies  
               on their credit reports.

               There are three nationwide credit reporting agencies:  
               Equifax, Experian, and TransUnion.  Each agency is  
               required, by federal law, to provide one free credit report  
               to a consumer, upon request, every 12 months.  While the  
               right of a consumer to obtain a copy of his or her credit  
               report from a credit reporting agency goes a long way to  
               ensuring the accuracy of credit reports, it may not give  
               the consumer a complete picture about his or her credit  
               history.  The reports that users receive sometimes contain  
               information about the credit history of other consumers.  A  
               2002 study by the Consumer Federation of America . . .  
               found that approximately 10 [percent] of the 1,545 files  
               they reviewed included records of "the wrong person."  When  
               an adverse decision is based upon such information, the  
               consumer may not know about it, and therefore would not be  
               able to correct it.

               Federal law allows a user of consumer credit reports to  
               provide its copy of a report about a consumer to the  
               consumer, upon request, after taking an adverse action  
               against the consumer based on information in the report.   
               It also prohibits credit reporting agencies from  
               interfering with the ability of users to provide reports to  
                                                                      



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               consumers under these circumstances.  However, credit  
               reporting agencies nevertheless discourage users from  
               complying with consumer requests in their contracts with  
               users.

               The right of consumers to obtain copies of their credit  
               files goes a long [way] to ensuring the accuracy of credit  
               reports.  According to the federal Consumer and Financial  
               Protection Bureau (CFPB), "[c]onsumers' right to dispute  
               information contained in their credit reports under the  
               FCRA - and furnishers' and the NCRAs' obligation to respond  
               - provide important checks on inaccurate credit reports."   
               Current federal law gives consumers the right to obtain one  
               copy of their credit file each year and to receive notice  
               of adverse actions involving credit reports with a  
               resultant right to a free disclosure.  The CFPB estimates  
               that at least 40,000,000 consumers obtain a copy of their  
               credit files each year from one or more of the NCRAs.  

               . . .

               Inaccuracies can enter into credit reports in a number of  
               ways.  Inaccuracies can occur if consumers provide  
               inaccurate data when applying for a loan or if the creditor  
               who furnishes data to the credit bureau inputs consumer  
               information to its systems inaccurately.  Inaccuracies can  
               occur when the bureaus match information about a consumer  
               from a particular data furnisher to the wrong individual  
               consumer's file.  Inaccuracies can also come from errors or  
               the lack of identifying information in government records.   
               Finally and importantly, inaccuracies occur when consumers  
               are victims of identity fraud or identity theft.

               AB 1220 makes it unlawful for a consumer credit reporting  
               agency to prohibit, or to dissuade or attempt to dissuade,  
               a user of a consumer credit report furnished by the credit  
               reporting agency from providing a copy of the consumer's  
               credit report to the consumer, upon the consumer's request,  
               if the user has taken adverse action against the consumer  
               based upon the report.

          2.  Consumer access to credit reports  

          The extensive use of consumer credit reports in modern commerce,  
          and the benefits or consequences that flow from decisions based  
          on their content, make their accuracy and reliability matters of  
                                                                      



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          high public importance.  As noted above, a Federal Trade  
          Commission (FTC) study of the U.S. credit reporting industry  
          found that "one in five consumers had an error on at least one  
          of their three credit reports," and for five percent of  
          consumers the errors on their credit reports were of such  
          significance that the errors "could lead to them paying more for  
          products such as auto loans and insurance."  (Federal Trade  
          Commission, In FTC Study, Five Percent of Consumers Had Errors  
          on Their Credit Reports That Could Result in Less Favorable  
          Terms for Loans < http://www.ftc.gov/  
          opa/2013/02/creditreport.shtm> [as of June 10, 2013].)  Existing  
          law contains a number of safeguards to ensure the integrity of  
          information contained in consumer credit reports, including  
          mechanisms allowing consumers to access and review this  
          information.  This bill builds upon those provisions by  
          prohibiting consumer credit reporting agencies from dissuading  
          or attempting to dissuade end users of credit reports, such as  
          financial institutions, from disclosing the contents of these  
          reports to consumers who are adversely affected in reliance on  
          the information they contain.

          In practice, this bill would likely restrict the ability of  
          credit reporting agencies to enter into use contracts that  
          contain overly restrictive confidentiality provisions.  Credit  
          report information is a commodity that is bought and sold on the  
          information marketplace.  According to the FTC, "[t]here are  
          roughly 30,000 data furnishers" that provide a "wide range of  
          information on approximately 200 million consumers" in the  
          United States.  (December 2012 FTC Report, p. 2.)  In order to  
          maintain the value of the commodity being bought and sold,  
          credit reporting agencies license their aggregated credit report  
          information to both resellers of this information and end users  
          or "subscribers."  (December 2012 FTC Report, p. 3.)  The author  
          has produced an example of one such license agreement, and the  
          confidentiality provisions it contains could be construed as  
          discouraging the end user from sharing credit report information  
          with an adversely affected consumer, despite restrictions in  
          existing law that arguably prohibit such conduct.  This bill  
          would likely force credit reporting agencies to abandon  
          restrictive covenants of this sort in their license agreements  
          with end users of credit reports, thereby ensuring greater  
          consumer access to the information contained within these  
          reports.

          3.  Proposed amendment from San Diego County Apartment Association
           
                                                                      



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          The San Diego County Apartment Association (SDCAA), who employs  
          tenant screening companies that use credit reports as part of  
          their screening process, has suggested the adoption of certain  
          grandfathering amendments to "provide protection to companies  
          whose existing contracts contain consumer-protection language  
          which they fear, with the bill's enactment, would inadvertently  
          expose them to new liability."  Specifically, SDCAA recommends  
          that the author add a clause to the bill that would restrict its  
          applicability to contracts that are either "new or renewed on or  
          after January 1, 2014."  Despite SDCAA's concern, it does not  
          appear that this bill would expose signatories to existing  
          credit reporting contracts to any new civil liability.

          Civil Code Section 1667 renders unlawful any contract that is  
          "[c]ontrary to an express provision of law," "[c]ontrary to the  
          policy of express law, though not expressly prohibited," or  
          "[o]therwise contrary to good morals."  (Civ. Code Sec. 1667.)   
          Plainly, if this bill becomes law, contracts entered into after  
          the bill's entry into force would be unlawful, and likely void  
          (at least in part) under state law, if they included restrictive  
          covenants that dissuade or attempt to dissuade a user of a  
          consumer credit report from providing a copy of the report to  
          the consumer upon request when adverse action has been taken  
          based upon the report.  Equally plain, however, is the fact that  
          under California law, contracts that were valid when made cannot  
          be rendered invalid through subsequent acts of the Legislature.   
          (Stephens v. Southern Pac. Co., 109 Cal. 86, 95 (1895) ["if the  
          contract was valid when made, no subsequent act of the  
          legislature can render it invalid"].)  Similarly, if a contract  
          conforms to the policy of express law at the time it was made, a  
          subsequent change in policy will not void the contract.  (Moran  
          v. Harris (1982) 130 Cal.App.3d 872, 918 ["In determining  
          whether the subject of a given contract violates public policy,  
          courts must rely on the state of the law as it existed at the  
          time the contract was made."].)

          Applied to the context cited by SDCAA, the addition of a  
          grandfathering amendment appears unnecessary.  To the extent  
          that contracts entered into by the tenant screening companies  
          highlighted by SDCAA comply with the policy and express terms of  
          existing law, the provisions in this bill would not  
          retroactively expose them to new liability.  

          4.  Prior opposition  

          Staff notes that several entities that were opposed to this  
                                                                      



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          measure have removed their opposition and adopted a neutral  
          stance toward it.  Earlier versions of this bill would have  
          provided significantly broader protections to consumers,  
          including requiring mandatory disclosures in certain contracts  
          pertaining to the prohibitions created under the bill, as well  
          as other notifications concerning the rights of consumers.   
          Earlier versions would have also affirmatively required the user  
          of a consumer credit report to inform a consumer of the reasons  
          why the user took adverse action if adverse action was taken  
          wholly or in part because of the information contained in the  
          report.  This earlier version of AB 1220 was opposed by:  
          American Financial Services Association; California Bankers  
          Association; California Chamber of Commerce; California  
          Financial Services Association; California Manufactures and  
          Technology Association; California Mortgage Bankers Association;  
          California Retailers Association; Consumer Data Industry  
          Association; Equifax; Experian; Internet Alliance; and  
          TransUnion.

          This bill was substantively amended into its present form on May  
          20, 2013, and following those amendments, the entities noted  
          above withdrew their opposition and have taken a "no position"  
          position on the bill.


           Support  :  California Association of Realtors; California Public  
          Interest Research Group (CALPIRG); California Senior  
          Legislature; Consumer Federation of California; Consumers Union;  
          Mari J. Frank & Associates; Privacy Rights Clearinghouse

           Opposition  :  San Diego County Apartment Association (neutral if  
          amended)

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  AB 1169 (Daly) would make an  
          escrow agent rating service subject to certain requirements  
          applicable to the resellers of credit information under the  
          Consumer Credit Reporting Agencies Act.  This bill is pending in  
          the Senate Banking and Financial Institutions Committee.

           Prior Legislation  :

          AB 488 (Kehoe, Chapter 236, Statutes of 2001) requires a  
                                                                      



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          consumer credit reporting agency to disclose, upon request of  
          the consumer, the addresses and, if provided by the sources and  
          recipients of the consumer's credit information, telephone  
          numbers identified for customer services for the sources and  
                                                                      recipients.

          SB 168 (Bowen, Chapter 720, Statutes of 2001) gave California  
          consumers the right to place a freeze on their credit reports,  
          which prohibits a credit reporting agency from releasing the  
          consumer's credit report without the express authorization of  
          the consumer.

          SB 1607 (Figueroa, Chapter 978, Statutes of 2000) requires a  
          consumer credit reporting agency to disclose specified  
          information, including the consumer's credit score and an  
          explanation of the credit score, under specified circumstances.   
          This bill further provides that any contractual provisions that  
          prohibit the disclosure of a credit score by a person who makes  
          or arranges loans or by a consumer credit reporting agency are  
          void, and that a lender shall not have liability for disclosure  
          of credit scores under any contractual provision.

          AB 453 (Havice, 1999) would have required a consumer credit  
          reporting agency to include all of the consumer's credit scores  
          and any other predictors relating to the consumer in any  
          disclosure to the consumer of the consumer's file.  This bill  
          failed passage in the Assembly Banking and Finance Committee.

          SB 71 (Murray, 1998) would have, among other things, required a  
          consumer credit reporting agency to disclose specified  
          information, including the consumer's credit score and an  
          explanation of the credit score, under specified circumstances.   
          This bill would further provide that any contractual provisions  
          that prohibit the disclosure of a credit score by a person who  
          makes or arranges loans or by a consumer credit reporting agency  
          are void, and that a lender shall not have liability for  
          disclosure of credit scores under any contractual provision.    
          This bill died in the Assembly Judiciary Committee.

          AB 1629 (Peace, Chapter 1194, Statutes of 1992) provides that  
          consumers have a right to visually inspect all information in a  
          consumer credit reporting agency's files maintained regarding  
          that consumer upon request.  This bill also specifies that no  
          consumer credit reporting agency may prohibit a user of a report  
          from disclosing the report to the consumer if the report could  
          be the basis of adverse action, as defined. 
                                                                      



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           Prior Vote  :

          Assembly Banking and Finance Committee (Ayes 7, Noes 2)
          Assembly Appropriations Committee (Ayes 12, Noes 0)
          Assembly Floor (Ayes 55, Noes 21)

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