FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN C. GORMAN, an individual, 

Plaintiff-Appellant, No. 06-17226

v. D.C. No. 

WOLPOFF & ABRAMSON, LLP; CV-04-04507-JW

MBNA AMERICA BANK, N.A., OPINION

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

Argued and Submitted

July 17, 2008—San Francisco, California

Filed January 12, 2009

Before: Richard A. Paez and Marsha S. Berzon,

Circuit Judges, and Harold Baer,* District Judge.

Opinion by Judge Berzon

*The Honorable Harold Baer, Jr., Senior United States District Judge

for the Southern District of New York, sitting by designation. 

263
COUNSEL

John C. Gorman and Charles J. Stiegler, San Jose, California,

for the plaintiff-appellant. 

Tomio B. Narita and Jeffrey A. Topor, San Francisco, California, for the defendants-appellees. 

OPINION

BERZON, Circuit Judge: 

John Gorman tried to buy a satellite television system using

his credit card, issued by MBNA America Bank. He was

268 GORMAN v. WOLPOFF & ABRAMSON
unsatisfied with the system purchased, and lodged a challenge

with MBNA to dispute the charge. Unhappy with MBNA’s

response, Gorman instituted this lawsuit against MBNA,

alleging violations of the Fair Credit Reporting Act, 15 U.S.C.

§§ 1681-1681x, libel, and violations of Cal. Civ. Code section 1785.25(a). The district court dismissed his California

statutory claim and granted MBNA summary judgment on the

other causes of action. Gorman v. Wolpoff & Abramson, LLP

(“Gorman I”), 370 F. Supp. 2d 1005 (N.D. Cal. 2005); Gorman v. Wolpoff & Abramson, LLP (“Gorman II”), 435 F.

Supp. 2d 1004 (N.D. Cal. 2006). We affirm in part and

reverse in part.

I. BACKGROUND

In December 2002, John Gorman paid for the delivery and

installation of a new satellite TV system on a Visa credit card

issued by MBNA America Bank (“MBNA”). The charge,

$759.70, was posted on his January 2003 credit card statement. According to Gorman, the merchant, Four Peaks Home

Entertainment (“Four Peaks”), delivered a used and defective

TV system and botched the installation, damaging his house

in the process. Gorman told Four Peaks he was refusing delivery of the goods and asked for a refund, but Four Peaks

refused to refund the charges unless Gorman arranged to

return the TV system. The defective equipment is still in Gorman’s possession.1

1MBNA claims that Four Peaks shipped Gorman new, replacement

equipment and that Gorman retains both the defective and replacement

equipment. Gorman disputes having received any replacement system.

Gorman also claims that he made the merchandise available to Four Peaks

for pickup, and that doing so was sufficient to require a refund under Cal.

Com. Code section 2602(2)(b) (“If the buyer has before rejection taken

physical possession of goods in which he does not have a security interest

under the provisions of this division (subdivision (3) of Section 2711), he

is under a duty after rejection to hold them with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them.”).

He also testified in his deposition that Four Peaks never sent him pre-paid

shipping labels. It is not clear whether he would have shipped the merchandise back had he received such labels. 

GORMAN v. WOLPOFF & ABRAMSON 269
In February 2003, Gorman notified MBNA that he was disputing the charges and submitted copies of emails between

himself and Four Peaks. The attached emails showed that

Gorman had informed a Four Peaks representative that the

delivered goods were “unacceptable and [were] rejected.” He

also noted damage from the installation and notified Four

Peaks that he “plan[ned] to dispute the credit card charges in

their entirety, as the damage exceeds the amount of the

charges.”

MBNA responded to the dispute notice with a request for

additional information from Gorman about the dispute,

including proof that the merchandise had been returned. A

month passed, and MBNA wrote Gorman again, stating that

as he had not responded, it assumed the charge was no longer

disputed. Gorman answered that he continued to dispute the

charge, and referred MBNA to his original notice of dispute.

He did not claim to have returned the equipment, but stated

that the merchandise “has been available for the merchant to

pick up.” MBNA again requested proof that the goods had

been returned; Gorman did not reply.

In April 2003, MBNA informed Gorman that it was “unable to assist [him] because the merchandise has not been

returned to the merchant.” Gorman called an MBNA representative saying, again, that all relevant information was in

his original letter. MBNA then contacted Four Peaks, which

told MBNA that it had shipped replacement equipment to

Gorman but that he had not sent the old equipment back to

them.

In July 2003, MBNA again informed Gorman that it could

not obtain a credit on his behalf without further information

from him. Gorman, who is a lawyer, responded in writing on

his law firm’s letterhead, stating that MBNA had all the information it needed, that he had left several unanswered messages with MBNA asking to speak with someone about the

dispute, and that he would “never” pay the disputed charge.

270 GORMAN v. WOLPOFF & ABRAMSON
He further stated that MBNA had violated the Fair Credit

Billing Act, that he was “entitled to recover attorneys’ fees for

MBNA’s violation,” and that he was offsetting his legal fees

against his current account balance and so would make no

more payments on the card, for the TV system or anything else.2

The balance at that time was more than $6,000.3

Gorman’s letter to MBNA worked, at least temporarily. In

August 2003, MBNA removed the Four Peaks charge and

related finance charges and late fees from Gorman’s credit

card bill. Over the next two months, MBNA again contacted

Four Peaks, which once more informed MBNA that it would

not issue a credit for Gorman’s charge until he returned the

refused equipment. When MBNA called Gorman, he

informed them he had the merchandise and “ha[d] no intention of ever [returning] it.” In October, MBNA reposted the

charge to Gorman’s account.

After he stopped making payments on his card, Gorman

claims, he received numerous harassing phone calls. During

one of these calls, Gorman alleges, an MBNA representative

told him, “We’re a big bank. You either pay us or we’ll

destroy your credit.”

In January 2004, MBNA reported Gorman’s account to the

credit reporting agencies (“CRAs”) as “charged-off.”

4

Between May 2004 and November 2005, Gorman informed

the three major credit reporting agencies (Equifax, Trans2Gorman has not indicated any specific basis for his fees claim. He

refused to answer questions at his deposition about whether these fees

were for services he had personally performed, claiming attorney-client

and work product privilege. No suit had been filed at the time Gorman

claimed entitlement to these fees. 

3As far as the record reveals, the entire balance remains unpaid. 

4MBNA also referred the debt to a law firm, Wolpoff & Abramson, for

collection. The firm’s attempt to collect the debt gave rise to unfair debt

collection practices claims in Gorman’s complaint. Gorman does not

appeal the district court’s entry of judgment against him on these claims.

GORMAN v. WOLPOFF & ABRAMSON 271
Union, and Experian) that their credit reports included inaccurate information.

As required by federal law, the CRAs sent MBNA notices

of dispute containing descriptions of Gorman’s complaints (as

understood by the CRAs) and asking the bank to verify the

accuracy of his account records. MBNA responded by

reviewing the account records and notes. After ascertaining

that its prior investigation did not support Gorman’s claimed

dispute, MBNA notified the CRAs that the delinquency was

not an error. According to Gorman, MBNA did not notify the

CRAs that the charges remained in dispute, and the CRAs did

not list the charges as disputed.5

Since his credit reports began listing his MBNA account as

delinquent, Gorman has been denied credit altogether or

offered only high interest rates on at least three occasions. He

contends that the MBNA account is the only negative entry on

his credit report.

In September 2004, Gorman sued MBNA. The complaint

alleges violations of the federal Fair Credit Reporting Act

(“FCRA”), 15 U.S.C. §§ 1681-1681x and a California credit

reporting law, Cal. Civ. Code section 1785.25(a), and also

alleges a claim for libel. Gorman seeks injunctive relief, damages resulting from MBNA’s reporting of his account, and

damages from lost wages for the time he spent dealing with

his credit that he would have otherwise spent billing clients.

The district court dismissed Gorman’s California statutory

claim as preempted and granted MBNA summary judgment

on all other claims. Gorman timely appeals. 

For the reasons stated below, we affirm in part and reverse

5Gorman did not initially supply the district court with his credit reports.

In support of his motion to reconsider the district court’s summary judgment order, however, Gorman submitted copies of his credit reports,

which include no indication that the MBNA account is disputed.

272 GORMAN v. WOLPOFF & ABRAMSON
in part the district court’s grant of summary judgment on the

FCRA claims; we affirm the district court’s grant of summary

judgment on Gorman’s libel claim; and we reverse the district

court’s dismissal of Gorman’s California statutory claim.

II. ANALYSIS

This case comes to us on summary judgment. We review

a grant of summary judgement de novo. Bodett v. CoxCom,

Inc., 366 F.3d 736, 742 (9th Cir. 2004). Summary judgement

is appropriate where, “drawing all reasonable inferences supported by the evidence in favor of the non-moving party,” the

court finds “that no genuine disputes of material fact exist and

that the district court correctly applied the law.” Id. (internal

quotation omitted). The non-moving party “must make a

showing sufficient to establish a genuine dispute of material

fact regarding the existence of the essential elements of his

case that he must prove at trial.” Galen v. County of Los

Angeles, 477 F.3d 652, 658 (9th Cir. 2007) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 321-23 (1986)). 

Questions of statutory interpretation and federal preemption

are, of course, reviewed de novo. J & G Sales Ltd. v. Truscott,

473 F.3d 1043, 1047 (9th Cir. 2007); Davis v. Yageo Corp.,

481 F.3d 661, 673 (9th Cir. 2007). 

A. Fair Credit Reporting Act Claims

1. Statutory Background

Congress enacted the Fair Credit Reporting Act (“FCRA”),

15 U.S.C. §§ 1681-1681x,6 in 1970 “to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v.

Burr, 127 S.Ct. 2201, 2205 (2007). As an important means to

this end, the Act sought to make “consumer reporting agen6All references to the FCRA hereafter are to 15 U.S.C. 

GORMAN v. WOLPOFF & ABRAMSON 273
cies exercise their grave responsibilities [in assembling and

evaluating consumers’ credit, and disseminating information

about consumers’ credit] with fairness, impartiality, and a

respect for the consumer’s right to privacy.” 15 U.S.C.

§ 1681(a)(4). In addition, to ensure that credit reports are

accurate, the FCRA imposes some duties on the sources that

provide credit information to CRAs, called “furnishers” in the

statute.7 Section 1681s-2 sets forth “[r]esponsibilities of furnishers of information to consumer reporting agencies,”

delineating two categories of responsibilities.8 Subsection (a)

details the duty “to provide accurate information,” and

includes the following duty:

(3) Duty to provide notice of dispute

If the completeness or accuracy of any information

furnished by any person to any consumer reporting

agency is disputed to such person by a consumer, the

person may not furnish the information to any consumer reporting agency without notice that such

information is disputed by the consumer. 

§ 1681s-2(a)(3). 

Section 1681s-2(b) imposes a second category of duties on

furnishers of information. These obligations are triggered

“upon notice of dispute”— that is, when a person who furnished information to a CRA receives notice from the CRA

that the consumer disputes the information. See § 1681i(a)(2)

(requiring CRAs promptly to provide such notification con7

“The most common . . . furnishers of information are credit card issuers, auto dealers, department and grocery stores, lenders, utilities, insurers,

collection agencies, and government agencies.” H.R. Rep. No. 108-263, at

24 (2003). 

8This section was added by the Consumer Credit Reporting Reform Act

of 1996, Pub. L. No. 104-208, § 2413, 110 Stat. 3009-447. Additional

amendments, not relevant here, were made by the Fair and Accurate

Credit Transactions Act of 2003, Pub. L. No. 108-159, 117 Stat. 1952. 

274 GORMAN v. WOLPOFF & ABRAMSON
taining all relevant information about the consumer’s dispute).

Subsection 1681s-2(b) provides that, after receiving a notice

of dispute, the furnisher shall:

(A) conduct an investigation with respect to the disputed information; 

(B) review all relevant information provided by the

[CRA] pursuant to section 1681i(a)(2) . . . ; 

(C) report the results of the investigation to the

[CRA]; 

(D) if the investigation finds that the information is

incomplete or inaccurate, report those results to all

other [CRAs] to which the person furnished the

information . . . ; and 

(E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or

cannot be verified after any reinvestigation under

paragraph (1) . . . (i) modify . . . (ii) delete [or] (iii)

permanently block the reporting of that item of information [to the CRAs]. 

§ 1681s-2(b)(1). These duties arise only after the furnisher

receives notice of dispute from a CRA; notice of a dispute

received directly from the consumer does not trigger furnishers’ duties under subsection (b). See id.; Nelson v. Chase

Manhattan Mortgage Corp., 282 F.3d 1057, 1059-60 (9th Cir.

2002). 

The FCRA expressly creates a private right of action for

willful or negligent noncompliance with its requirements.

§§ 1681n & o; see also Nelson, 282 F.3d at 1059. However,

§ 1681s-2 limits this private right of action to claims arising

under subsection (b), the duties triggered upon notice of a dispute from a CRA. § 1681s-2(c) (“Except [for circumstances

GORMAN v. WOLPOFF & ABRAMSON 275
not relevant here], sections 1681n and 1681o of this title do

not apply to any violation of . . . subsection (a) of this section,

including any regulations issued thereunder.”). Duties

imposed on furnishers under subsection (a) are enforceable

only by federal or state agencies.9See § 1681s-2(d). 

Gorman alleges that MBNA violated several of the FCRA

“furnisher” obligations. We hold that some of the alleged violations survive summary judgment and some do not.

2. MBNA’s “investigation” upon notice of dispute

Gorman’s first allegation is that MBNA did not conduct a

sufficient investigation after receiving notice from the CRAs

that he disputed the charges, as required by § 1681s2(b)(1)(A). As Gorman’s claim arises under subsection (b), it

can be the basis for a private lawsuit. See Nelson, 282 F.3d

at 1059-60. We must decide (1) whether § 1681s-2(b)(1)(A)

requires a furnisher to conduct a “reasonable” investigation,

and if so, (2) whether a disputed issue of material fact exists

as to the reasonableness of MBNA’s investigation. 

9Nelson explained the likely reason for allowing private enforcement of

subsection (b) but not subsection (a) as follows: 

Congress did not want furnishers of credit information exposed

to suit by any and every consumer dissatisfied with the credit

information furnished. Hence, Congress limited the enforcement

of the duties imposed by § 1681s-2(a) to governmental bodies.

But Congress did provide a filtering mechanism in § 1681s-2(b)

by making the disputatious consumer notify a CRA and setting

up the CRA to receive notice of the investigation by the furnisher. See 15 U.S.C. § 1681i(a)(3) (allowing CRA to terminate

reinvestigation of disputed item if CRA “reasonably determines

that the dispute by the consumer is frivolous or irrelevant”). With

this filter in place and opportunity for the furnisher to save itself

from liability by taking the steps required by § 1681s-2(b), Congress put no limit on private enforcement under §§ 1681n & o.

Nelson, 282 F.3d at 1060. 

276 GORMAN v. WOLPOFF & ABRAMSON
a. Must an Investigation be Reasonable?

[1] The text of the FCRA states only that the creditor shall

conduct “an investigation with respect to the disputed information.” § 1681s-2(b)(1)(A). MBNA urges that because there

is no “reasonableness” requirement expressly enunciated in

the text, the FCRA does not require an investigation of any

particular quality; any investigation into a consumer’s dispute

— even an entirely unreasonable one — satisfies the statute.

[2] This court has not addressed MBNA’s contention about

the FCRA’s investigation requirement.10 But, MBNA made —

and lost — the same argument before the Fourth Circuit.

Johnson v. MBNA Am. Bank, NA, 357 F.3d 426, 429-31 (4th

Cir. 2004). Concluding that the statute includes a requirement

that a furnisher’s investigation not be unreasonable, the

Fourth Circuit first noted that the plain meaning of the term

“investigation” is a “ ‘detailed inquiry or systematic examination,’ ” which necessarily “requires some degree of careful

inquiry.” Id. at 430 (quoting Am. Heritage Dictionary 920

(4th ed. 2000)). Second, the Fourth Circuit reasoned that

because the purpose of the provision is “to give consumers a

means to dispute — and, ultimately, correct — inaccurate

information on their credit reports,” id. at 430-31, a “superficial, unreasonable inquir[y]” would hardly satisfy Congress’

objective. Id. at 431. The Seventh Circuit, without discussing

the issue, has also found an implicit reasonableness requirement. See Westra v. Credit Control of Pinellas, 409 F.3d 825,

827 (7th Cir. 2005) (“Whether a defendant’s investigation

[pursuant to § 1681s-2(b)(1)(A)] is reasonable is a factual

question normally reserved for trial.”); see also Johnson, 357

F.3d at 430 n.2 (“[D]istrict courts that have considered the

10District courts in this circuit have assumed that § 1681s-2(b)(1)(A)

requires a reasonable investigation. See, e.g., Smith v. Ohio Sav. Bank, No.

2:05-cv-1236, 2008 WL 2704719, at *2 (D. Nev. July 7, 2008); Thomas

v. U.S. Bank, N.A., No. CV 05-1725, 2007 WL 764312, at *4 (D. Or. Mar.

8, 2007). 

GORMAN v. WOLPOFF & ABRAMSON 277
issue have consistently recognized that the creditor’s investigation must be a reasonable one.” (citing cases)). 

[3] The Fourth Circuit’s reasoning in Johnson is entirely

persuasive. By its ordinary meaning, an “investigation”

requires an inquiry likely to turn up information about the

underlying facts and positions of the parties, not a cursory or

sloppy review of the dispute. Moreover, like the Fourth Circuit, we have observed that “a primary purpose for the FCRA

[is] to protect consumers against inaccurate and incomplete

credit reporting.” Nelson, 282 F.3d at 1060. A provision that

required only a cursory investigation would not provide such

protection; instead, it would allow furnishers to escape their

obligations by merely rubber stamping their earlier submissions, even where circumstances demanded a more thorough

inquiry. MBNA counters by pointing to § 1681i(a)(1)(A),

which provides, in relevant part (with emphasis added):

[I]f the completeness or accuracy of any item of

information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer

and the consumer notifies the agency directly, or

indirectly through a reseller, of such dispute, the

agency shall, free of charge, conduct a reasonable

reinvestigation to determine whether the disputed

information is inaccurate . . . . 

Thus, MBNA argues, Congress specified a “reasonable”

investigation in another part of the statute, and purposely

chose not to do so for furnishers of information. 

It is most often the case that “[w]here Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” Russello v. United States, 464 U.S.

16, 23 (1983) (internal quotation and citation omitted). But

we should be careful not to read too much into the apparent

278 GORMAN v. WOLPOFF & ABRAMSON
disparity in language upon which MBNA relies. Where, as

here, there are convincing alternative explanations for a difference in statutory language, the presumption applies with

much less force. See Field v. Mans, 516 U.S. 59, 67-69 (1995)

(“Without more, the [negative] inference might be a helpful

one. But [where] there is more . . . the negative pregnant argument should not be elevated to the level of interpretive trump

card.”). 

As we have noted, the term “investigation” on its own force

implies a fairly searching inquiry. It is thus likely that, if anything, the “reasonable” qualifier with regard to reinvestigations by CRAs signals a limitation on the CRAs’ duty, not an

expansion of it beyond what “investigation” itself would signal. And, indeed, the statute goes on to spell out the CRA’s

investigative duty in some detail, requiring, inter alia, that the

CRA provide notification of the dispute within five business

days of receipt of notice of a dispute. The furnisher’s investigation obligation under § 1681 is triggered by receiving the

CRA notification, required as a central aspect of the CRA’s

own investigation, and includes the obligation to “report the

results of [its] investigation to the [CRA].” § 1681s2-

(b)(1)(C). In other words, the CRA’s “reasonable reinvestigation” consists largely of triggering the investigation by the

furnisher. It would make little sense to deem the CRA’s

investigation “reasonable” if it consisted primarily of requesting a superficial, unreasonable investigation by the furnisher

of the information. 

[4] Nevertheless, MBNA urges that “Congress intended to

impose a more rigorous duty of investigation on CRAs than

on furnishers of information.” But MBNA does not tell us

why Congress would mandate shoddy or superficial furnisher

investigations, not calculated to resolve or to explain the

actual disagreement or to aid in the CRA’s “reasonable reinvestigation.” Indeed, as the statute recognizes, the furnisher of

credit information stands in a far better position to make a

thorough investigation of a disputed debt than the CRA does

GORMAN v. WOLPOFF & ABRAMSON 279
on reinvestigation. With respect to the accuracy of disputed

information, the CRA is a third party, lacking any direct relationship with the consumer, and its responsibility is to “reinvestigate” a matter once already investigated in the first place.

§ 1681i(a)(1) (emphasis added). It would therefore make little

sense to impose a more rigorous requirement on the CRAs

than the furnishers. Instead, the more sensible conclusion is

that, if anything, the “reasonable” qualifier attached to a

CRA’s duty to reinvestigate limits its obligations on account

of its third-party status and the fact that it is repeating a task

already completed once. Requiring furnishers, on inquiry by

a CRA, to conduct at least a reasonable, non-cursory investigation comports with the aim of the statute to “protect consumers from the transmission of inaccurate information about

them.” Kates v. Crocker Nat’l Bank, 776 F.2d 1396, 1397 (9th

Cir. 1985). 

[5] We thus follow the Fourth and Seventh Circuits and

hold that the furnisher’s investigation pursuant to § 1681s2(b)(1)(A) may not be unreasonable. 

b. MBNA’s Investigation was Reasonable

[6] As discussed, a furnisher’s obligation to conduct a reasonable investigation under § 1681s-2(b)(1)(A) arises when it

receives a notice of dispute from a CRA. Such notice must

include “all relevant information regarding the dispute that the

[CRA] has received from the consumer.” § 1681i(a)(2)(A). It

is from this notice that the furnisher learns the nature of the

consumer’s challenge to the reported debt, and it is the receipt

of this notice that gives rise to the furnisher’s obligation to

conduct a reasonable investigation. Accordingly, the reasonableness of the furnisher’s investigation is measured by its

response to the specific information provided by the CRA in

the notice of dispute. The pertinent question is thus whether

the furnisher’s procedures were reasonable in light of what it

learned about the dispute from the description in the CRA’s

notice of dispute. See Westra, 409 F.3d at 827 (“[The furnish280 GORMAN v. WOLPOFF & ABRAMSON
er’s] investigation in this case was reasonable given the scant

information it received regarding the nature of [the consumer’s] dispute.”). 

MBNA received four notices of dispute regarding Gorman’s account. Gorman argues that the district court erred in

granting summary judgment as to the reasonableness of

MBNA’s investigation in response to these notices because

triable issues of fact remain. We have held that “summary

judgment is generally an inappropriate way to decide questions of reasonableness because ‘the jury’s unique competence in applying the ‘reasonable man’ standard is thought

ordinarily to preclude summary judgment.’ ” In re Software

Toolworks Inc., 50 F.3d 615, 621 (9th Cir. 1994) (quoting

TSC Indus. v. Northway, Inc., 426 U.S. 438, 450 n.12 (1976)).

However, summary judgment is not precluded altogether on

questions of reasonableness. It is appropriate “when only one

conclusion about the conduct’s reasonableness is possible.”

Id. at 622; see also Westra, 409 F.3d at 827. We thus consider

the sufficiency of MBNA’s investigation with respect to each

of the notices. 

i. “Claims Company will Change”

[7] In a notice of dispute received May 13, 2004, TransUnion provided the following information concerning Gorman’s MBNA account: “Claims company will change. Verify

all account information.” The notice provided no further

information about the nature of the dispute. In response to this

notice, MBNA “review[ed] the account notes to determine

whether MBNA had agreed to delete any charges or to modify

the account information in any way.” It concluded that “[n]o

such commitment had been made.” MBNA’s review of the

account information provided by TransUnion did reveal

“some minor differences.” As a result, MBNA submitted

updated address, date of birth, and account delinquency information to TransUnion.

GORMAN v. WOLPOFF & ABRAMSON 281
[8] The cursory notation, “[c]laims company will change,”

provided no suggestion of the nature of Gorman’s dispute

with Four Peaks. We conclude therefore that a jury could not

find MBNA’s response unreasonable. MBNA reasonably read

the vague notice as indicating that MBNA had previously

agreed to change certain account information. MBNA’s

review of its internal account files to determine whether any

such agreement had been reached was all that was required to

respond reasonably to this notice of dispute. The account

notes reveal that MBNA had communicated with Four Peaks

several times and do not reveal any agreement by MBNA to

credit those charges, or any others. MBNA could not have

reasonably been expected to undertake a more thorough

investigation of the Four Peaks incident based on the scant

information contained in this notice.

ii. “Fraudulent Charges”

MBNA received two notices disputing “fraudulent charges”

on Gorman’s account. A notice of dispute from Experian,

dated May 18, 2004, stated: “Consumer claims account takeover fraudulent charges made on account. Verify Signature

provide complete ID.” In response to this notice, MBNA

“verif[ied] that the name, address, date of birth and social

security number reported by Experian matched the information that was contained in MBNA’s records concerning the

account.” It also “review[ed] the account notes and check[ed]

with the fraud department to determine whether there had

ever been a fraud claim submitted with respect to the

account.” Because the identification information matched and

no fraud claim had been submitted, MBNA reported to

Experian that the information it previously reported was accurate and requested that Experian tell Gorman to contact

MBNA if he suspected fraud.

MBNA received another dispute notice from TransUnion,

dated November 29, 2005, that listed two disputes: (1) “Disputes present/previous Account Status History. Verify accord282 GORMAN v. WOLPOFF & ABRAMSON
ingly;” (2) “Consumer claims account take-over fraudulent

charges made on account. Verify Signature provide or confirm complete ID.” MBNA conducted the following inquiry:

[V]erif[ied] that the account history that was being

reported matched the account history data in

MBNA’s records, including the balance, the amount

past due, the high credit and credit limit for the

account. . . . [V]erif[ied] that the name, address, date

of birth and social security number reported by

TransUnion matched the information that was contained in MBNA’s records concerning the

account. . . . [R]eview[ed] the account notes and

check[ed] with the fraud department to determine

whether there had ever been a fraud claim submitted

with respect to the account. 

Because this investigation did not reveal that any information

was inaccurate, MBNA verified the information previously

submitted to TransUnion.

[9] Neither notice identified the nature of Gorman’s dispute

as centering on the Four Peaks charge or indicated that the

dispute concerned rejection of the goods charged for. Indeed,

the notices did not describe the fraudulent transactions in any

detail; they were silent as to the approximate date of the

charges, their amount, and the identity of the merchant. Moreover, Gorman has never contended that the disputed charges

were initially unauthorized or were the result of identity theft,

as the dispute notices indicated. Not surprisingly, MBNA’s

review of its internal account notes showed no evidence of

fraudulent activity, and all previous account data reported by

the CRAs matched MBNA’s records. We conclude that, as in

the case of the first notice of dispute, MBNA could not reasonably have been expected to investigate Gorman’s challenge to the Four Peaks charge based on the vague and

GORMAN v. WOLPOFF & ABRAMSON 283
inaccurate information it received from the CRAs in these

notices.11

iii. “Promised Goods/Services Not Delivered”

One notice of dispute did provide more accurate and specific information relating to Gorman’s dispute with MBNA.

A December 2004 notice from Experian stated: “Claims inaccurate information. Did not provide specific dispute. Provide

complete ID and verify account information.” The notice further provided, in a section for “FCRA Relevant Information”:

“PROMISED GOODS/SERVICES NOT DELIVERED. I

11Gorman complains that he had no control over the information the

CRAs gave MBNA, and that MBNA should have asked the CRAs for

more detail on Gorman’s complaints. But Gorman’s letters to the CRAs

do not provide much more detail concerning his dispute than the CRAs’

description to MBNA. Two of the dispute notices were prompted by letters from Gorman to the CRAs stating: 

MBNA posted certain fraudulent credit card charges to a former

VISA account in or about early 2003. I timely notified MBNA

that the charges were disputed and should be removed from my

account yet MBNA failed to removed [sic] them and is wrongfully claiming that my account is delinquent. No money is owed

to MBNA. Moreover, MBNA has been repeatedly advised by me,

both orally and in writing, that the debt is disputed but is unlawfully refusing to note the existence of the dispute on my credit

record. 

The November 2005 dispute notice was prompted by an on-line complaint

form filled out by Gorman stating: “I have never made a late payment,”

and “Fraudulent charges were made on my account.” 

It is the duty of the CRA — not the furnisher — to ensure that the furnisher has all relevant information about the dispute. See § 1681i(a)(2)(A)

(the CRA’s notice to furnisher “shall include all relevant information

regarding the dispute that the agency has received from the consumer

. . . .”). Moreover, as it is not hard to see why the CRAs interpreted Gorman’s messages as they did, MBNA likely would have interpreted them

in the same way had it obtained them, and so would have made the same,

limited investigation. 

284 GORMAN v. WOLPOFF & ABRAMSON
TIMELY DISPUTED THE CHARGES UNDER THE TIL

ACT.”12 In response to this notice, MBNA 

review[ed] its records to confirm that all of the

account information that was being reported by

Experian matched MBNA’s records. MBNA also

reviewed the account notes to determine if any dispute submitted by Gorman concerning the account

had been resolved in his favor. Since the reported

information matched the information in MBNA’s

records, and because the prior investigation of the

charge with Four Peaks Entertainment had not been

resolved in favor of Gorman, MBNA verified all the

information that it had reported about the account as

accurate.

[10] Unlike the other three notices of dispute, the December 2004 notice contained enough information to alert MBNA

to the specific nature of Gorman’s actual claim: the reported

debt was not owed because he had not received the goods he

was promised. Simply verifying that the basic reported

account data matched MBNA’s internal records may not have

been a reasonably sufficient investigation of this particular

dispute. 

But MBNA’s investigation was more thorough than simply

a review of bare account data. The review of internal records

revealed that MBNA had previously investigated the Four

Peaks charge and that the dispute had not been resolved in

Gorman’s favor. 

Nevertheless, Gorman claims that a jury could still find

MBNA’s efforts unreasonable, because it failed to reinvestigate the dispute. As an initial matter, there is no evidence that

MBNA’s original investigation of the Four Peaks incident

12This is likely referring to the Truth in Lending Act, Pub. L. No. 90-

321, Title I, 82 Stat. 146 (1968) (codified at 15 U.S.C. § 1601 et seq.). 

GORMAN v. WOLPOFF & ABRAMSON 285
was deficient or unreliable.13 MBNA contacted both Gorman

and Four Peaks several times as part of the investigation. Its

requests that Gorman provide more information were met

with refusals to supply additional information or no response

at all. MBNA’s correspondence with Four Peaks also evidences a diligent attempt to ascertain the validity of the

charges. For example, MBNA asked about Goman’s opportunity to return the merchandise and was told that Gorman

received shipping labels to return the merchandise.

[11] Importantly, the CRA notice of dispute that triggered

MBNA’s duty to investigate did not identify any reason to

doubt the veracity of the initial investigation. Furthermore, the

notice of dispute did not provide any new information that

would have prompted MBNA to supplement the initial investigation with any additional procedures or inquiries. 

[12] We agree that “[w]hether a reinvestigation conducted

by a furnisher in response to a consumer’s notice of dispute

is reasonable . . . depends in large part on . . . the allegations

provided to the furnisher by the credit reporting agency.” Krajewski v. Am. Honda Fin. Corp., 557 F. Supp. 2d 596, 610

(E.D. Pa. 2008). Without any indication in the allegations that

the initial investigation lacked reliability or that new information was available to discover, MBNA’s decision not to repeat

a previously-conducted investigation cannot have been unreasonable. Congress could not have intended to place a burden

on furnishers continually to reinvestigate a particular transaction, without any new information or other reason to doubt the

result of the earlier investigation, every time the consumer

disputes again the transaction with a CRA because the investi13The reasonableness of MBNA’s initial investigation is not directly

before us. That investigation was conducted before MBNA reported Gorman’s account to the CRAs. To the extent that it is governed by the FCRA

at all, it falls under § 1681s-2(a)(1), the duty of furnishers to provide accurate information to CRAs. Although MBNA is required under § 1681s2(a)(1) to provide accurate information, Gorman cannot enforce that obligation in a private cause of action. See § 1681s-2(c), (d). 

286 GORMAN v. WOLPOFF & ABRAMSON
gation was not resolved in his favor. Thus, although reliance

on a prior investigation can be unreasonable, cf. Bruce v. First

U.S.A. Bank, Nat’l Ass’n, 103 F. Supp. 2d 1135, 1143-44

(E.D. Mo. 2000) (concluding that a furnisher’s investigation

was not necessarily reasonable when an initial investigation

was deficient for, among other reasons, failing to contact the

consumer), that was not the case here. 

Gorman disputes this conclusion, insisting that under the

Fourth Circuit’s opinion in Johnson, it is per se unreasonable

for a furnisher to rely solely on internal account records when

investigating a consumer dispute. Gorman misreads Johnson,

which recognized that the reasonableness of an investigation

depends on the facts of the particular case, most importantly

the CRA’s description of the dispute in its notice. See Johnson, 357 F.3d at 431 (noting that confining the investigation

to internal computer notes was not necessarily reasonable in

light of the specificity of the description of the dispute in the

notice). 

In Johnson, the CRA’s notice to MBNA read: “CONSUMER STATES BELONGS TO HUSBAND ONLY;”

“WAS NEVER A SIGNER ON ACCOUNT. WAS AN

AUTHORIZED USER.” Id. at 429. The underlying facts were

that Johnson’s future husband opened an MBNA credit card

account. Some years later, after they were married, Johnson’s

husband filed for bankruptcy, and MBNA told Johnson she

was responsible for the balance, maintaining that she was a

co-applicant, and therefore a co-obligor, on the account. Johnson, 357 F.3d at 428-29. Johnson argued that she was merely

an authorized user. Id.

In response to the notice to the CRAs, MBNA only confirmed Johnson’s identifying information and confirmed that

its internal computer system indicated she was the sole

responsible party on the account. Id. at 431. At no time did

MBNA try to ascertain whether Johnson’s information — that

GORMAN v. WOLPOFF & ABRAMSON 287
she had not signed the application form — was correct. The

Fourth Circuit held this investigation unreasonable:

The MBNA agents also testified that, in investigating consumer disputes generally, they do not look

beyond the information contained in the CIS

[MBNA’s internal computer system] and never consult underlying documents such as account applications. Based on this evidence, a jury could

reasonably conclude that MBNA acted unreasonably

in failing to verify the accuracy of the information

contained in the CIS. 

Id.

[13] In contrast to Johnson, in Gorman’s case MBNA did

review all the pertinent records in its possession, which

revealed that an initial investigation had taken place in which

MBNA contacted both Gorman and the merchant. Thus,

unlike in Johnson, MBNA had — albeit earlier — gone outside its own records to investigate the allegations contained in

the CRA notice, and on reading the notice, did consult the relevant information in its possession. Johnson does not indicate

that a furnisher has an obligation to repeat an earlier investigation, the record of which is in the furnisher’s records. 

We emphasize that the requirement that furnishers investigate consumer disputes is procedural. An investigation is not

necessarily unreasonable because it results in a substantive

conclusion unfavorable to the consumer, even if that conclusion turns out to be inaccurate. 

[14] In short, although “reasonableness” is generally a

question for a finder of fact, summary judgment in this case

was appropriate. 

288 GORMAN v. WOLPOFF & ABRAMSON
3. MBNA’s failure to provide notice of dispute

Gorman next argues that MBNA failed to notify the CRAs

that he continued to dispute the delinquent charges on his

account. He contends that in reporting the delinquency without also reporting his ongoing dispute, MBNA violated its

obligations under 12 C.F.R. § 226.13,14 and thus furnished

“incomplete or inaccurate” credit information in violation of

the FCRA. MBNA neither concedes nor disputes that it was

so obligated,15 but argues on summary judgment that the statute does not permit Gorman to raise this claim. Also, in the

alternative, MBNA contends that Gorman did not submit

enough evidence to show whether his credit reports included

a notice that the delinquency was disputed or whether MBNA

did not so notify the CRAs. We must decide (1) whether the

failure to notify the CRAs that the delinquent debt was disputed is actionable under § 1681s-2(b), and if so, (2) whether

Gorman introduced sufficient evidence on summary judgment

to show that MBNA so notified the CRAs.

a. Gorman’s Claim is Actionable

[15] If a consumer disputes the accuracy of credit information, the FCRA requires furnishers to report that fact when

reporting the disputed information. Section 1681s-2(a)(3) pro14This requirement is imposed by Regulation Z, promulgated pursuant

to the Truth in Lending Act, 15 U.S.C. § 1601 et seq. The regulation provides that, if a consumer timely disputes a charge with a creditor but the

creditor concludes that the charge is valid, the creditor “[m]ay not report

that an amount or account is delinquent because the amount due . . .

remains unpaid, if the creditor receives [within a specific time period] further written notice from the consumer that any portion of the billing

error is still in dispute, unless the creditor also . . . [p]romptly reports that

the amount or account is in dispute.” 12 C.F.R. § 226.13(g)(4). 

15Gorman does not bring a claim under either Regulation Z or the pertinent section of the Truth in Lending Act. We therefore need not decide

whether in this case MBNA violated its obligations under those provisions. 

GORMAN v. WOLPOFF & ABRAMSON 289
vides: “If the completeness or accuracy of any information

furnished by any person to any consumer reporting agency is

disputed to such person by a consumer, the person may not

furnish the information to any consumer reporting agency

without notice that such information is disputed by the consumer.” As noted, however, the statute expressly provides that

a claim for violation of this requirement can be pursued only

by federal or state officials, and not by a private party.

§ 1681s-2(c)(1) (“Except [for circumstances not relevant

here], sections 1681n and 1681o of this title [providing private right of action for willful and negligent violations] do not

apply to any violation of . . . subsection (a) of this section,

including any regulations issued thereunder.”); see also Nelson, 282 F.3d at 1059. Thus, Gorman has no private right of

action under § 1681s-2(a)(3) to proceed against MBNA for its

initial failure to notify the CRAs that he disputed the Four

Peaks charges. 

[16] Gorman does have a private right of action, however,

to challenge MBNA’s subsequent failure to so notify the

CRAs after receiving notice of Gorman’s dispute under

§ 1681s-2(b). In addition to requiring that a furnisher conduct

a reasonable investigation of a consumer dispute, § 1681s2(b) also requires a creditor, upon receiving notice of such

dispute, to both report the results of the investigation and, “if

the investigation finds that the information is incomplete or

inaccurate, report those results” to the CRAs. § 1681s2(b)(1)(C), (D). Gorman argues that MBNA’s reporting of the

Four Peaks charge and delinquency, without a notation that

the debt was disputed, was an “incomplete or inaccurate”

entry on his credit file that MBNA failed to correct after its

investigation. As this claim alleges that obligations imposed

under § 1681s-2(b) were violated, it is available to private

individuals. 

[17] The Fourth Circuit has recently held that after receiving notice of dispute, a furnisher’s decision to continue reporting a disputed debt without any notation of the dispute

290 GORMAN v. WOLPOFF & ABRAMSON
presents a cognizable claim under § 1681s-2(b). See Saunders

v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 150 (4th

Cir. 2008). In Saunders, a consumer alleged that he incurred

late fees and penalties as a result of a creditor’s own admitted

accounting errors; the creditor, Branch Banking & Trust

(BB&T), refused to waive the fees, and the consumer

responded by withholding payments on the loan. Id. at 145-

46. BB&T reported the loan to the CRAs as “in repossession

status,” and, after suffering adverse credit decisions, the consumer contacted the CRAs to report the dispute. Id. at 146.

The CRAs sent a notice of dispute to BB&T, triggering its

obligations to investigate and verify the accuracy of the

reported information under § 1681s-2(b)(1). BB&T responded

by updating the consumer record to reflect that it had written

off the debt as uncollectible, but failed to indicate that the

consumer still disputed the validity of the obligation. Id. The

consumer brought suit under § 1681s-2(b) and a jury found

that BB&T had violated its obligations. 

The Fourth Circuit affirmed. The court reasoned that in

enacting § 1681s-2(b)(1)(D), “Congress clearly intended furnishers to review reports not only for inaccuracies in the

information reported but also for omissions that render the

reported information misleading.” Id. at 148. Although the

report may have been “technically accurate” in the sense that

it reflected the consumer’s failure to make any payments on

the loan, the court noted that it had previously held that “a

consumer report that contains technically accurate information may be deemed ‘inaccurate’ if the statement is presented

in such a way that it creates a misleading impression.” Id. (citing Dalton v. Capital Associated Indus., Inc., 257 F.3d 409,

415-16 (4th Cir. 2001)). The Fourth Circuit went on to note

that a consumer’s failure to pay a debt that is not really due

“does not reflect financial irresponsibility,” and thus the omission of the disputed nature of a debt could render the information sufficiently misleading so as to be “incomplete or

inaccurate” within the meaning of the statute. Id. at 150.

Saunders went on to reject the contention that Congress

GORMAN v. WOLPOFF & ABRAMSON 291
meant to exempt furnishers of information from private liability by placing the initial obligation to report disputes in subsection (a), stating that “[n]o court has ever suggested that a

furnisher can excuse its failure to identify an inaccuracy when

reporting pursuant to § 1681s-2(b) by arguing that it should

have already reported the information accurately under

§ 1681s-2(a).” Id. at 149-50. 

[18] This reasoning is persuasive. Like Saunders, several

other courts have held that a credit entry can be “incomplete

or inaccurate” within the meaning of the FCRA “because it is

patently incorrect, or because it is misleading in such a way

and to such an extent that it can be expected to adversely

affect credit decisions.” Sepulvado v. CSC Credit Servs., Inc.,

158 F.3d 890, 895 (5th Cir. 1998); see also Koropoulos v.

Credit Bureau, Inc., 734 F.2d 37, 40 (D.C. Cir. 1984)

(“Certainly reports containing factually correct information

that nonetheless mislead their readers are neither maximally

accurate nor fair to the consumer . . . .”). As the Fourth Circuit

observed, holding otherwise would create a rule that, as a

matter of law, an omission of the disputed nature of a debt

never renders a report incomplete or inaccurate. See Saunders,

526 F.3d at 150. Not only might such a rule intimidate consumers into giving up bona fide disputes by paying debts not

actually due to avoid damage to their credit ratings, but it also

contravenes the purpose of the FCRA, to protect against “unfair credit reporting methods.” See 15 U.S.C. § 1681(a)(1). 

Holding that there is a private cause of action under

§ 1681s-2(b) does not mean that a furnisher could be held liable on the merits simply for a failure to report that a debt is

disputed. The consumer must still convince the finder of fact

that the omission of the dispute was “misleading in such a

way and to such an extent that [it] can be expected to have an

adverse effect.” Saunders, 526 F.3d at 150 (quotation omitted). In other words, a furnisher does not report “incomplete

or inaccurate” information within the meaning of § 1681s2(b) simply by failing to report a meritless dispute, because

292 GORMAN v. WOLPOFF & ABRAMSON
reporting an actual debt without noting that it is disputed is

unlikely to be materially misleading. It is the failure to report

a bona fide dispute, a dispute that could materially alter how

the reported debt is understood, that gives rise to a furnisher’s

liability under § 1681s-2(b). Cf. id. at 151 (“[W]e assume,

without deciding that a furnisher incurs liability under

§ 1681s-2(b) only if it fails to report a meritorious dispute.”).

[19] It is true, as we have said, that a furnisher’s initial failure to comply with this requirement is not privately enforceable. But as the Fourth Circuit noted, this does not excuse the

furnisher’s failure to correct the omission after investigating

pursuant to § 1681s-2(b). See Saunders, 526 F.3d at 150. The

purpose of § 1681s-2(b) is to require furnishers to investigate

and verify that they are in fact reporting complete and accurate information to the CRAs after a consumer has objected

to the information in his file. See Johnson, 357 F.3d at 431

(“[Congress] create[d] a system intended to give consumers a

means to dispute—and, ultimately, correct—inaccurate information on their credit reports.”). A disputed credit file that

lacks a notation of dispute may well be “incomplete or inaccurate” within the meaning of the FCRA, and the furnisher

has a privately enforceable obligation to correct the information after notice. § 1681s-2(b)(1)(D). We thus conclude that

the statute permits Gorman to bring his claim regarding

MBNA’s failure to report the charge still disputed.

b. Evidentiary Challenges

MBNA argues that summary judgment is nevertheless

appropriate on this claim because Gorman failed to introduce

sufficient admissible evidence that (1) his credit reports

lacked a notation that the Four Peaks debt was disputed and

(2) MBNA failed to report the account as disputed in this

respect to the CRAs. 

Gorman did not submit his credit reports to the district

GORMAN v. WOLPOFF & ABRAMSON 293
court until after the court issued its summary judgment order.16

We ordinarily will not consider on appeal “[p]apers submitted

to the district court after the ruling that is challenged.” Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir.

1988). We need not decide, however, whether the credit

reports are properly before us, because Gorman has submitted

other admissible evidence that creates a triable issue of fact as

to whether his credit reports lacked a notice of dispute. 

[20] Gorman previously stated in his declaration that he

had reviewed many of his personal credit reports, and that

none of them included a notice that he disputed the delinquent

charges. This statement is admissible evidence. Gorman has

personal knowledge, having seen the reports. The evidence is

not inadmissible hearsay, as Gorman does not rely on the

credit reports for the truth of the matter asserted therein; in

fact, as he notes, he disputes the truth of their contents.

Instead, Gorman offers them to prove that no statement noticing the dispute was made. “If the significance of an offered

statement lies solely in the fact that it was made . . . the statement is not hearsay.” United States v. Dorsey, 418 F.3d 1038,

1044 (9th Cir. 2005) (quoting Fed. R. Evid. 801 advisory

committee’s note). He thus submitted sufficient evidence for

a jury to conclude that his credit reports contained no notice

of dispute. 

[21] There is also sufficient evidence from which a jury

could infer that MBNA did not notify the CRAs that the debt

was disputed. Gorman himself has no personal knowledge of

what MBNA actually submitted to the CRAs in response to

its investigations.17 However, the dispute verification forms

16Gorman submitted the credit reports in support of his motion for leave

to file a motion for reconsideration. 

17The only evidence he submitted was his sworn declaration that

MBNA “report[ed] my account as delinquent without indicating that some

or all of the debt was disputed by the account holder.” Gorman Decl. ¶ 12,

Apr. 12, 2006. But Gorman provided no indication that he had personal

knowledge of the contents of MBNA’s report. 

294 GORMAN v. WOLPOFF & ABRAMSON
MBNA returned to the CRAs contained no notice that the

debt was disputed; rather, they indicated that the information

previously provided was “accurate as reported.” Yet,

MBNA’s review of Gorman’s account notes revealed that he

continued to dispute the debt even after MBNA concluded its

initial investigation and reposted the Four Peaks charges.

Moreover, according to MBNA’s witness’s declaration,

MBNA told the CRAs that all of the information reported on

Gorman’s account was accurate, and Gorman has produced

sufficient evidence that no notice of dispute appeared on the

credit reports. Gorman has thus submitted sufficient evidence

to create an issue of fact concerning whether MBNA failed to

inform the CRAs, in response to the dispute notice, that Gorman still disputed the debt. 

[22] In sum, we hold that any investigation under § 1681s2(b)(1)(A) must be reasonable; that any reasonable trier of

fact would conclude that MBNA’s investigation was reasonable; that § 1681s-2(b) permits Gorman to bring his claim that

MBNA failed to inform the CRAs that the information about

his delinquency was “incomplete or inaccurate” after investigating the December 2004 notice from the CRAs; and that

Gorman has submitted sufficient evidence to survive summary judgment on this claim.18

B. Libel Claim

Gorman also advanced a state law libel claim on which the

18Because the district court held that there was no private right of action

under § 1681s-2(b), it did not reach the merits of Gorman’s claim. Gorman II, 435 F. Supp. 2d at 1008-09. On appeal, MBNA’s arguments as to

this claim are only that there is no private right of action, and, in the alternative, that Gorman has failed to introduce admissible evidence that

MBNA failed to report the debt as disputed. We do not go beyond the

arguments made, and so conclude only that Gorman can go forward with

his claim, having produced admissible evidence that MBNA failed to

report the debt as disputed. We take no position as to whether MBNA’s

failure to report the debt as disputed violated § 1681s-2(b). 

GORMAN v. WOLPOFF & ABRAMSON 295
district court made two rulings. On MBNA’s motion to dismiss, the court held that the FCRA did not preempt Gorman’s

libel claim because he alleged malice or willful intent to

injure, satisfying the requirements of § 1681h(e). Gorman I,

370 F. Supp. 2d at 1009-10. MBNA contests this conclusion.

The district court granted MBNA’s motion for summary judgment on the libel claim however, holding that Gorman failed

to submit evidence creating a disputed issue of material fact

with respect to malice or willful intent. Gorman II, 435 F.

Supp. 2d at 1009-10. Gorman appeals this ruling.

1. Preemption

The preemption question presents a difficult issue of first

impression. The difficulty arises from the interaction of two

provisions of the FCRA. Section 1681h governs the

“[c]onditions and form of disclosure to consumers,” disclosures that CRAs are required or permitted to make under other

sections of the Act. Section 1681h(e) sets forth, in relevant

part, the following “[l]imitation of liability” (with emphasis

added):

Except as provided in sections 1681n and 1681o of

this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of

information against any consumer reporting agency,

any user of information, or any person who furnishes

information to a consumer reporting agency, based

on information disclosed pursuant to section 1681g,[19]

1681h,[20] or 1681m[21] of this title or based on infor19Section 1681g addresses “[d]isclosures to consumers.” It provides in

detail the information CRAs must disclose to consumers, the rights of consumers to obtain credit reports and scores and to dispute information in

credit reports, and the information that must be made available to identity

theft victims and mortgage applicants. 

20Section 1681h, as noted above, deals with the “[c]onditions and form”

of these disclosures. 

21Section 1681m addresses the duties of “users of consumer reports.” In

296 GORMAN v. WOLPOFF & ABRAMSON
mation disclosed by a user of a consumer report to

or for a consumer against whom the user has taken

adverse action, based in whole or in part on the

report except as to false information furnished with

malice or willful intent to injure such consumer

Section 1681t addresses more generally the FCRA’s

“[r]elation to State laws.” In general, the FCRA does not preempt any state law “except to the extent that those laws are

inconsistent with any provision of this subchapter, and then

only to the extent of the inconsistency.” § 1681t(a). But this

general rule has several exceptions, added in 1996, including

the following:

No requirement or prohibition may be imposed

under the laws of any State . . . with respect to any

subject matter regulated under . . . section 1681s-2 of

this title, relating to the responsibilities of persons

who furnish information to consumer reporting agencies, except that this paragraph shall not apply— 

(i) with respect to section 54A(a) of chapter

93 of the Massachusetts Annotated Laws

(as in effect on September 30, 1996); or 

(ii) with respect to section 1785.25(a) of the

California Civil Code (as in effect on September 30, 1996). 

§ 1681t(b)(1)(F).22 No changes were made to § 1681h(e) with

these amendments. 

essence, it imposes certain responsibilities on persons who take adverse

actions based on credit reports or another source of information about a

person’s credit, or who make solicitations on the basis of credit reports.

22The parties assume that, if § 1681t(b)(1)(F) applies, it bars Gorman’s

libel claim. We note, however, that the application of that section to any

GORMAN v. WOLPOFF & ABRAMSON 297
Although § 1681t(b)(1)(F) appears to preempt all state law

claims based on a creditor’s responsibilities under § 1681s-2,

§ 1681h(e) suggests that defamation claims can proceed

against creditors as long as the plaintiff alleges falsity and

malice. Attempting to reconcile the two sections has left district courts in disarray. The district court in this case held that

§ 1681h(e), the more specific preemption provision, trumped

the more general preemption provision of § 1681t(b)(1)(F).23

Gorman I, 370 F. Supp. 2d at 1009-10 (citing Gordon v.

Greenpoint Credit, 266 F. Supp. 2d 1007, 1013 (S.D. Iowa

2003)). Other district courts have followed different

approaches. Some have concluded that the later-enacted

§ 1681t(b)(1)(F) effectively repeals the earlier preemption

provision, § 1681h(e). Jaramillo v. Experian Info. Solutions,

given common law claim is not self-evident. In Cipollone v. Liggett

Group, Inc., 505 U.S. 504 (1992), the Supreme Court discussed whether

a preemption provision containing the same “No requirement or prohibition . . . shall be imposed” language applied to some, but not all, common

law claims. A plurality of the Court analyzed the question as follows: “we

ask whether the legal duty that is the predicate of the common-law damages action constitutes a ‘requirement or prohibition based on smoking

and health . . . imposed under State law with respect to . . . advertising or

promotion,’ giving that clause a fair but narrow reading.” Id. at 523-24

(alterations in original). See also Medtronic, Inc. v. Lohr, 518 U.S. 470,

485 (1996) (applying a “ ‘presumption against the pre-emption of state

police power regulations’ to support a narrow interpretation of such an

express [statutory] command.”). Assuming this is the right inquiry, libel

law probably entails a “prohibition . . . with respect to” what a furnisher

of information can report to a CRA. We do not decide the question, however, given our conclusion that Gorman has not presented sufficient evidence to state a libel claim. 

23We note that both provisions are specific in different ways:

§ 1681t(b)(1)(F) is specific as to the target of suits, governing requirements placed on furnishers of information; § 1681h(e) is specific as to the

nature of the claim, permitting certain common law claims if falsity and

malice is shown. So, in some sense, both provisions are “specific.” But

§ 1681h(e) may be more specific for preemption purposes, because the

tension is the nature of the claims preempted, and § 1681h(e) specifies

certain claims that can be brought. 

298 GORMAN v. WOLPOFF & ABRAMSON
Inc., 155 F. Supp. 2d 356, 361 (E.D. Pa. 2001) (footnote omitted) (the “total preemption” approach). Attempting to give

meaning to both sections, other courts have observed that

§ 1681t(b)(1)(F) relates to “any subject matter regulated under

section 1681s-2,” the section which regulates the responses of

furnishers to notices of dispute. Hence, these courts apply a

“temporal approach,” holding that “causes of action predicated on acts that occurred before a furnisher of information

had notice of any inaccuracies are not preempted by

§ 1681t(b)(1)(F), but are instead governed by § 1681h(e).”

Kane v. Guar. Residential Lending, Inc., 2005 WL 1153623,

at *8 (E.D.N.Y. May 16, 2005). 

Gorman advocates a still different “statutory” analysis,

under which “t(b)(1)(F) preempts only state law claims

against credit information furnishers brought under state statutes, just as 1681h(e) preempts only state tort claims.” Manno

v. Am. Gen. Fin. Co., 439 F. Supp. 2d 418, 425 (E.D. Pa.

2006) (describing the approach).24 Finally, MBNA argues that

§ 1681h(e) is not a broad preemption provision at all, but simply a “grant of protection for statutorily required disclosures.”

(quoting McAnly v. Middleton & Reutlinger, P.S.C., 77 F.

Supp. 2d 810, 814 (W.D. Ky. 1999)). But, of course, granting

entities immunity from state law tort suits in exchange for

24Support for this view rests on the proposition that “Congress seems to

have been most concerned with protecting credit information furnishers

from state statutory obligations inconsistent with their duties under the

FCRA.” Manno, 439 F. Supp. 2d at 425. Section 1681t(b)(1)(F) exempts

two specific state statutes from preemption, suggesting, some courts say,

that Congress “had state statutes in mind.” Id. Other subsections of

§ 1681t also exempt state statutes; none addresses common law claims.

Yet, this distinction does not appear in the text of the statute. In fact, “[t]he

phrase ‘[n]o requirement or prohibition’ sweeps broadly and suggests no

distinction between positive enactments and common law; to the contrary,

those words easily encompass obligations that take the form of commonlaw rules.” Cipollone, 505 U.S. at 521 (1992) (plurality opinion) (second

alteration in original); see also Riegel v. Medtronic, Inc., 128 S.Ct. 999,

1008 (2008) (adopting this position for a majority of the Court). 

GORMAN v. WOLPOFF & ABRAMSON 299
making required disclosures is just another way of saying that

certain state law claims are preempted.25

In the end, we need not decide this issue. As we conclude

below, even if Gorman could bring a state law libel claim

under § 1681h(e), and such a claim were not preempted by

§ 1681t(b)(1)(F), he has not introduced sufficient evidence to

survive summary judgment on this claim. 

2. Evidence

[23] Under California law, “[l]ibel is a false and unprivileged publication . . . which exposes any person to hatred,

contempt, ridicule, or obloquy, or which causes him to be

shunned or avoided, or which has a tendency to injure him in

his occupation.” Cal. Civ. Code § 45. Even if Gorman’s libel

claim is not preempted by § 1681t(b)(1)(F), it is still subject

to § 1681h(e), and so he must prove, in addition to the common law elements of libel, that the information was “false”

and “furnished with malice or willful intent to injure.” 

[24] The FCRA does not define the appropriate standard

for “malice.” The two circuits that have interpreted

§ 1681h(e) have applied the standard enunciated in New York

Times v. Sullivan, 376 U.S. 254, 279-80 (1964), requiring the

publication be made “with knowledge that it was false or with

25McAnly offers one reason why Congress may have chosen to preempt

such state law claims:

Since various parts of the federal statute require consumer reporting agencies and information users to disclose information to

consumers under certain circumstances, this section guarantees

that the agencies or users cannot be sued for those required disclosures under state tort law. It makes sense that acts required to

be done by the FCRA are immunized from state tort liability. 

77 F. Supp. 2d at 814-15. However illuminating this explanation may be,

it does not help resolve the apparent conflict between §§ 1681h(e) and

1681t(b)(1)(F). 

300 GORMAN v. WOLPOFF & ABRAMSON
reckless disregard of whether it was false or not.” See Morris

v. Equifax Info. Servs., LLC, 457 F.3d 460, 471 (5th Cir.

2006); Thornton v. Equifax, Inc., 619 F.2d 700, 705 (8th Cir.

1980). Under New York Times, to show “reckless disregard,”

a plaintiff must put forth “sufficient evidence to permit the

conclusion that the defendant in fact entertained serious

doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968); see also Morris, 457 F.3d at

471 (applying St. Amant). We agree with the courts that have

adopted the New York Times standard for purposes of

§ 1681h(e), and so apply it here. 

Gorman’s libel claim is based on two pieces of information

reported by MBNA: the underlying debt itself and the reporting of the debt without a notation that it was disputed. 

As to the debt itself, there is no evidence that MBNA knew

the debt was false or acted with reckless disregard as to its falsity. As an initial matter, the bulk of the delinquent debt —

about $5,000 — derives from non-disputed credit card purchases, unrelated to the disputed Four Peaks charge. Gorman

contends that he does not owe these charges, claiming an offset for his attorneys’ fees incurred in the dispute over the Four

Peaks debt. But he has presented no authority whatever supporting his entitlement to these fees, nor any evidence that

these fees are reasonable. Absent any evidence or colorable

argument that this portion of the debt to MBNA was invalid,

no reasonable jury could find that MBNA acted maliciously

in reporting this portion of the debt to the CRAs. 

Gorman has also failed to introduce sufficient evidence of

malice with respect to the remaining portion of the debt, the

roughly $750 disputed Four Peaks charge. Even assuming that

the debt was indeed invalid, we cannot say that a reasonable

jury could conclude that MBNA acted with “reckless disregard” as to the invalidity of the debt.26

26We do not decide whether the debt related to the Four Peaks charge

is valid, as the question is not before us. 

GORMAN v. WOLPOFF & ABRAMSON 301
MBNA conducted an investigation into Gorman’s dispute

in which it contacted both Gorman and Four Peaks. As a

result of the investigation, it initially agreed to remove the

charges, reinstating them only after learning that Gorman had

failed to return the merchandise. The remaining controversy

involves a legal and factual disagreement between Gorman

and Four Peaks.27 MBNA did not act recklessly by failing to

wade through this complex legal and factual debate. See

Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1069 (9th Cir. 1992)

(concluding that a furnisher does not act with malice when it

takes “reasonable steps to verify the information” in its credit

report). That it reposted the debt in reliance on Four Peaks’s

version rather than resolving the dispute in Gorman’s favor

does not demonstrate that MBNA “entertained serious doubts

as to the truth of [its] publication.” St. Amant, 390 U.S. at 731.

Additionally, even if MBNA violated its obligations to

report that Gorman disputed the debt, this failure does not

render the information that was reported “false” so as to support a libel claim meeting the § 1681h(e) malice standard. The

obligation to report a disputed debt is a protective regulatory

requirement imposed by the FCRA. § 1681s-2(a)(3); see also

12 C.F.R. § 226.13. Any failure by MBNA to meet this

requirement may render its reporting deficient under the statute, but it does not render the information MBNA did furnish

maliciously or wilfully false. So long as the creditor has a

good faith reason for believing that the debt is in fact owed,

27Gorman’s essential claim is that in rejecting the goods and making

them available to Four Peaks for pickup, he has done all that is required

under California law. See Cal. Com. Code § 2602 (“If the buyer has before

rejection taken physical possession of the goods . . . he is under a duty

after rejection to hold them with reasonable care at the seller’s disposition

for a time sufficient to permit the seller to remove them.”). Four Peaks

claimed to have sent Gorman pre-paid shipping labels for the defective

merchandise’s return, but insisted that Gorman would have to pay to

return the replacement equipment it claims to have sent. Gorman insists

that he did not receive any replacement merchandise or shipment labels

and, in any event, he refuses to pay any shipping costs. 

302 GORMAN v. WOLPOFF & ABRAMSON
reporting the debt without reporting the dispute does not convey “false” information “with malice or willful intent to injure

the consumer.” See Francis v. Dun & Bradstreet, Inc., 4 Cal.

Rptr. 2d 361, 364 (Ct. App. 1992) (holding that a defamation

claim cannot be sustained for truthful information in a credit

report, even if the information reported supports misleading

inferences). 

Gorman has offered no evidence that MBNA seriously

doubted that the debt was owed, or that MBNA believed Gorman had a meritorious dispute. The record suggests instead

that MBNA investigated the debt and determined that it was

valid. Despite its conclusion, MBNA may still have faced a

regulatory obligation to report the continuing dispute, but its

failure to do so was not malicious. 

[25] Gorman’s sole evidence of MBNA’s malice or intent

to injure is the statement in his declaration that an MBNA

representative told him, during a collection call, “We’re a big

bank. You either pay us or we’ll destroy your credit.” But this

incident does not evidence a knowledge on MBNA’s part that

the debt was not valid. In the context of other evidence in the

record — including Gorman’s refusal to pay any of his credit

card bill because of supposed attorneys’ fees owed him by

MBNA — there is no basis for concluding that MBNA issued

that threat knowing no debt was due or recklessly disregarding the invalidity of the debt. 

[26] As Gorman cannot state a claim for libel consistent

with the limited exception contained in § 1681h(e) of the

FCRA, we affirm the district court’s grant of summary judgment to MBNA on Gorman’s libel claim. 

C. California Civil Code § 1785.25(a)

[27] Finally, Gorman brings a claim under Cal. Civ. Code

section 1785.25(a), which provides: 

GORMAN v. WOLPOFF & ABRAMSON 303
A person shall not furnish information on a specific

transaction or experience to any consumer credit

reporting agency if the person knows or should know

the information is incomplete or inaccurate. 

Section 1681t(b)(1)(F), the FCRA’s preemption provision,

expressly exempts this subsection — Cal. Civ. Code section

1785.25(a) — from its general exclusion of state law claims

on matters governed by § 1681s-2.28

On MBNA’s motion to dismiss, the district court nevertheless held the California statutory claim preempted, because

the private right of action to enforce Cal. Civ. Code section 1785.25(a) is found in other sections not specifically

exempted from the federal preemption provision, namely, Cal

Civ. Code sections 1785.25(g)29 and 1785.31.30 Because these

28As noted above, § 1681t(b)(1)(F) provides: 

No requirement or prohibition may be imposed under the laws of

any State . . . with respect to any subject matter regulated under

. . . section 1681s-2 of this title, relating to the responsibilities of

persons who furnish information to consumer reporting agencies,

except that this paragraph shall not apply— 

(i) with respect to section 54A(a) of chapter 93 of the Massachusetts Annotated Laws (as in effect on September 30,

1996); or 

(ii) with respect to section 1785.25(a) of the California Civil

Code (as in effect on September 30, 1996). 

The Massachusetts statute sets forth procedures to ensure accuracy of

information reported to consumer reporting agencies. 

29Section 1785.25(g) provides: 

A person who furnishes information to a consumer credit reporting agency is liable for failure to comply with this section, unless

the furnisher establishes by a preponderance of the evidence that,

at the time of the failure to comply with this section, the furnisher

maintained reasonable procedures to comply with those provisions. 

30Section 1785.31 provides that “[a]ny consumer who suffers damages

as a result of a violation of this title by any person may bring an action”

to recover damages. 

304 GORMAN v. WOLPOFF & ABRAMSON
specific sections were not excluded from the preemption section of the FCRA, the district court concluded, violations of

Cal. Civ. Code section 1785.25(a) could only be enforced by

federal or state officials. Gorman I, 370 F. Supp. 2d at 1010-

11. 

We do not find the district court’s reasoning persuasive. As

an initial matter, the court did not cite any provision of California law authorizing enforcement of section 1785.25(a) by

state officials. Lin v. Universal Card Services Corp., 238 F.

Supp. 2d 1147 (N.D. Cal. 2002), on which the district court

relied, similarly fails to identify authorization for enforcement

by state officials. Such authorization may reside elsewhere in

California law, but if it does, it almost surely lies in provisions also not specifically excluded by the FCRA preemption

provision. The district court’s analysis would thus lead to the

conclusion that Congress explicitly retained the portions of

the California statutory scheme that create obligations, without leaving in place any enforcement mechanism. This would

be an unlikely result at best.31

31In Islam v. Option One Mortgage Corp., 432 F. Supp. 2d 181 (D.

Mass. 2006), the court examined the Massachusetts provision, Mass. Gen.

Law 93 § 54A(a), that is also excluded from § 1681t(b)(1)(F). As with the

California statute, the FCRA explicitly identifies the portion of the Massachusetts statute that creates the reporting obligations for furnishers, but

does not expressly mention the section that provides for private enforcement. Id. at 185-86. The court held that absent any evidence that state officials were authorized to enforce this provision, the construction urged by

the district court here could not stand: “it is absurd to conclude that Congress would have explicitly excepted [Mass. Gen. Law 93 § 54A(a)] while

not leaving an enforcement mechanism.” Id. at 189. Finding that the parties stipulated to the Attorney General’s authority, however, Islam held the

private state claim preempted. Id.

The Islam court also felt itself constrained by the First Circuit’s affirmance of Gibbs v. SLM Corp., 336 F. Supp. 2d 1 (D. Mass. 2004), aff’d,

Gibbs v. SLM Corp., No. 05-1057, 2005 WL 5493113 (1st Cir. Aug. 23,

2005), which also construed § 1681t(b)(1)(F) as preempting private causes

of action under the Massachusetts statute, and was summarily affirmed by

the First Circuit without analysis. As we engage in more thorough statutory construction analysis, we reach a different conclusion. 

GORMAN v. WOLPOFF & ABRAMSON 305
[28] Moreover, the district court construed the statutory

exception in isolation, disregarding the affirmative preemption language of the statute that “[n]o requirement or prohibition may be imposed” with respect to subjects regulated under

§ 1681s-2. (emphasis added). Neither Cal. Civ. Code section 1785.25(g) nor section 1785.31 impose a “requirement or

prohibition.” Rather, these sections merely provide a vehicle

for private parties to enforce other sections, which do impose

requirements and prohibitions. In other words, Congress had

no need to include these enforcement provisions in the

§ 1681t(b)(1)(F) exception to save the California statutory

scheme from preemption, because those provisions were not

preempted by the affirmative language of the preemption provision. By the plain language of the statute, therefore, these

sections are not preempted by § 1681t(b)(1)(F). 

MBNA argues that this plain reading of the statute is foreclosed by the Supreme Court’s decision in Cipollone. Interpreting the phrase “any requirement or prohibition” in the

Federal Cigarette Label and Advertising Act, a majority of the

Cipollone Court held that common law damages actions can

impose “requirement[s] or prohibition[s],” because “regulation can be as effectively exerted through an award of damages as through some form of preventive relief.” 505 U.S. at

521 (plurality opinion) (citation omitted).32 But, as the court

later made clear in a majority opinion relying on the

Cipollone plurality’s discussion on this point, it is not the

common law enforcement mechanisms that are requirements

or prohibitions, but the “common law duties” underlying such

actions. Riegel v. Medtronic, Inc., 128 S.Ct. 999, 1008 (2008)

(emphasis added). As Riegel went on to explain, again relying

32Although only a plurality of the Court signed onto the portion of the

opinion containing this specific language, a majority of justices adopted

the position that the language “requirement or prohibition” sweeps broadly

enough to encompass state common-law rules. See Cipollone, 505 U.S. at

548-49 (Scalia and Thomas, JJ., concurring in the judgment in part and

dissenting in part). 

306 GORMAN v. WOLPOFF & ABRAMSON
on the Cipollone plurality, “common-law liability is premised

on the existence of a legal duty, and a tort judgment therefore

establishes that a defendant has violated a state-law obligation.” Id. (quoting Cipollone, 505 U.S. at 522) (emphasis

added). Thus, a “requirement” is “a rule of law that must be

obeyed,” Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445

(2005), whether it arises from common law principles

enforceable in damages actions or in a statute. But the damages remedy itself is not a “requirement or prohibition.” 

Here, it is Cal. Civ. Code section 1785.25(a), and only section 1785.25(a), that imposes legal duties — “rule[s] of law

that must be obeyed” — on furnishers of information. Congress explicitly saved this section from preemption in the

FCRA. Private enforcement of these obligations does not

impose “requirement[s] or prohibition[s]” but, instead, provides enforcement mechanisms for “requirement[s] or prohibition[s] imposed separately. Sections 1785.25(g) and

1785.31 do not impose any additional standards “designed to

be . . . potent method[s] of governing conduct and controlling

policy,” Riegel, 128 S.Ct. at 1008, nor do these sections

require furnishers to obey any additional rules of law. The

rules that must be obeyed already exist in the reporting obligations specified by section 1785.25(a) and saved in the

FCRA. See Bates, 544 U.S. at 445. 

MBNA’s argument that Congress’s desire for uniformity

and consistency compels an alternative construction is also

unpersuasive in this context. MBNA maintains that the FCRA

preemption provision evidences a desire for uniform credit

reporting obligations, and that the California statute was

saved only because it was not inconsistent with obligations

imposed by the federal statute. The legislative history surrounding § 1681t(b)(1)(F) is murky, but there is evidence that

the statutory scheme, which establishes national requirements

and preempts most state regulation, was motivated at least in

part by a desire for uniformity of reporting obligations. See S.

Rep. No. 103-209, at 7 (1993) (“Recognizing the national

GORMAN v. WOLPOFF & ABRAMSON 307
scope of the consumer reporting industry and the benefits of

uniformity, the Committee bill includes provisions preempting state law in several key areas of the FCRA.”). It is also

true that the excepted state law provisions are largely consistent with obligations imposed in the FCRA; indeed, the

requirements imposed in the California and Massachusetts

laws appear, in nearly identical fashion, in § 1681s-2(a).33

The only real inconsistency arises between the private

enforcement provisions of the California and Massachusetts

statutes and § 1681s-2(c) and (d), which prohibit private

enforcement of the obligations under § 1681s-2(a). But this is

an inconsistency that does not offend the purported goal of

uniformity of credit reporting obligations. The enforcement

sections do not impose inconsistent or conflicting obligations

on furnishers of information; as we have noted, they impose

no such requirements or prohibitions at all. As such, the

enforcement provisions do not add to a patchwork of confusing obligations with which a furnisher must struggle to comply. They instead allow for additional avenues through which

consumers can ensure that furnishers are complying with the

obligations Congress specifically meant to impose. 

Moreover, exempting specific state statutes from preemption is very unusual in federal statutes. To suppose Congress

would do so for little or no purpose — as would be the case

33Compare Cal. Civil Code section 1785.25(a) (“A person shall not furnish information on a specific transaction or experience to any consumer

credit reporting agency if the person knows or should know the information is incomplete or inaccurate.”), and Mass. Gen. Law 93 § 54A(a)

(“Every person who furnishes information to a consumer reporting agency

shall follow reasonable procedures to ensure that the information reported

to a consumer reporting agency is accurate and complete. No person may

provide information to a consumer reporting agency if such person knows

or has reasonable cause to believe such information is not accurate or

complete.”), with § 1681s-2(a)(1)(A) (“A person shall not furnish any

information relating to a consumer to any consumer reporting agency if

the person knows or has reasonable cause to believe that the information

is inaccurate.”). 

308 GORMAN v. WOLPOFF & ABRAMSON
if the private cause of action under California law were preempted — is simply not plausible. See Geier v. Am. Honda

Motor Co., 529 U.S. 861, 868 (2000) (“The saving clause

assumes that there are some significant number of . . . cases

to save.”). 

[29] Because the plain language of the preemption provision does not apply to private rights of action, and because the

likely purpose of the express exclusion was precisely to permit private enforcement of these provisions, we hold that the

private right of action to enforce Cal. Civ. Code section

1785.25(a) is not preempted by the FCRA.

D. Evidence of Causation/Damages

Finally, MBNA proposes an alternative ground on which to

affirm all claims: that Gorman failed in the summary judgment proceedings to submit admissible evidence of causation

or damages. In Dennis v. BEH-1, LLC, 520 F.3d 1066, 1069-

70 (9th Cir. 2008), this court found sufficient evidence of causation and damages to survive summary judgment where:

Dennis [the plaintiff] testified that he hoped to start

a business and that he diligently paid his bills on

time for years so that he would have a clean credit

history when he sought financing for the venture.

The only blemish on his credit report in April 2003

was the erroneously reported judgment. According

to Dennis, that was enough to cause several lenders

to decline his applications for credit, dashing his

hopes of starting a new business. Dennis also claims

that Experian’s error caused his next landlord to

demand that Dennis pay a greater security deposit. 

[30] Here, Gorman submitted evidence that he was refused

credit or offered higher than advertised interest rates; the

explanations given by the creditors were delinquencies on his

credit report; and the only delinquency is the MBNA account.

GORMAN v. WOLPOFF & ABRAMSON 309
Gorman maintains that he had to borrow money at inflated

interest rates, and that he lost wages from the time spent dealing with his credit problems. Under Dennis, this is sufficient

to establish causation and damages. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM in part and

REVERSE in part the district court’s order. 

310 GORMAN v. WOLPOFF & ABRAMSON