The Commissioner of the Financial Institutions Division (FID) of the Nevada Department of Business and Industry and the Nevada Attorney General have filed opposition to the preliminary injunction motion filed by three trade groups in their lawsuit challenging an amendment to Nevada law that allows an applicant for credit with no credit history to request that the creditor deem the applicant’s credit history to be identical to that of the applicant’s spouse during the marriage.  The amendment is contained in Senate Bill 311 which was signed into law by the Nevada Governor on July 1, 2019 and became effective on October 1. 

The lawsuit includes an allegation that the Nevada law is  preempted by the Fair Credit Reporting Act and the Equal Credit Opportunity Act.  The trade groups claim that (1) because creditors are not permitted to access a credit report where there is no permissible purpose or consent from the non-applicant, the requirement violates the FCRA, and (2) because creditors are not permitted to obtain information about a non-applicant spouse or former spouse based solely on the applicant’s request, it violates the ECOA/Regulation B prohibition on requesting information on an applicant’s spouse or former spouse.

Last week, the Commissioner and AG filed a motion to dismiss the trade groups’ lawsuit in which they argued that the plaintiffs’ claims do not satisfy Article III ripeness standards because there is no history of enforcement and the FID should be allowed to consider regulations to address the plaintiffs’ concerns.  In their opposition to the trade groups’ preliminary injunction motion, the Commissioner and AG use the same arguments to support their claim that the plaintiffs are not likely to succeed on the merits.  They also argue that there is no threat of irreparable harm because the plaintiffs “offer no evidence that any consumer has made a request [pursuant to the amendment] of them,” “do not assert that they have been threatened with a lawsuit by any consumer under [the amendment],” and “offer no evidence that they are in imminent danger of an administrative enforcement action either.”