By Michael Fuller

In Zabriskie v. Federal National Mortgage Association (9th Cir. 2019), a divided Ninth Circuit panel decided that Fannie Mae was not a “consumer reporting agency” under the Fair Credit Reporting Act. Accordingly, the opinion reversed the trial court and ruled against the Zabriskie family. The dissent determined that Fannie Mae was in fact a credit reporting agency, and would have ruled in favor of the Zabriskie family.

The case started when the Zabriskie family sued Fannie Mae under the Fair Credit Reporting Act. The Zabriskie family claimed that Fannie Mae’s Desktop Underwriter software falsely reported that the Zabriskie family had a foreclosure on their record, which interfered with their ability to get a home loan.

Judges J. Clifford Wallace and Susan P. Graber decided that Fannie Mae was not a credit reporting agency because it did not regularly assemble or evaluate consumer information. Instead, Judges Wallace and Graber found that Fannie Mae merely provided software that allowed lenders to assemble and evaluate consumer information. Judges Wallace and Graber also found that Fannie Mae was not a consumer reporting agency because the purpose of its Desktop Underwriter software was not to furnish consumer reports to third parties. Instead, the majority decided that the purpose of Fannie Mae’s software was to facilitate transactions between lenders and Fannie Mae.

In his dissent, Judge Lasnik pointed out that Fannie Mae knew its software was programmed in error to unfairly harm the Zabriskie family’s credit and Fannie Mae did nothing to correct the error. Judge Lasnik noted that the purpose of the Fair Credit Reporting Act was to “protect consumers against inaccurate and incomplete credit reporting”. Given the real world consequences of Fannie Mae’s credit reporting activities, the dissent determined that Congress did not intend to exclude Fannie Mae from liability under these circumstances.