Court Finds Fact Issues Based on CRAs' Summaries of Consumers' Disputes
Bradshaw v. BAC Home Loans Servicing, L.P., 2011 U.S. Dist. LEXIS 110781 (D. Or. Sept. 27, 2011)
Facts: In March 2008, Plaintiffs applied for a home loan modification and subsequently filed suit after encountering problems with the process and derogatory information was reported on their credit files. The dispute centered around whether Plaintiffs made timely payments pursuant to BAC Home Loans Servicing, LP's ("BAC") instructions while the loan modification was pending. Plaintiffs alleged that they always paid in accordance with BAC's directions yet BAC reported Plaintiffs as delinquent to the consumer reporting agencies ("CRAs").
After Plaintiff settled with BAC and Equifax, Trans Union and Experian filed motions for summary judgment regarding Plaintiffs' FCRA claims. Plaintiffs alleged that Defendants willfully and negligently failed to comply with the FCRA by (1) failing to follow reasonable procedures under § 1681e(b) and (2) failing to comply with the reinvestigation provisions of § 1681i. Defendants argued that they accurately reported the BAC account or, in the alternative, that Plaintiffs' dispute with BAC regarding the validity of their loan modification was a legal issue that Defendants were not obligated to resolve. The Court denied Defendants' motions for summary judgment.
Summary Judgment. The Court viewed the facts in a light most favorable to Plaintiffs and found that Plaintiffs had presented evidence that they had entered into a binding modification agreement that enabled them to lower their monthly mortgage payments. Thus, the Court found that a factual dispute existed regarding the accuracy of Plaintiffs' reports.
Reasonable Procedures. The Court concluded that fact issues existed as to whether Defendants had reasonable procedures to assure the maximum possible accuracy of the information associated with Plaintiffs' BAC account solely because Plaintiffs disputed that Defendants' procedures were reasonable.
Reinvestigation. The Court also found that factual issues precluded summary judgment as to whether a reasonable reinvestigation could have discovered the inaccuracies in Plaintiffs' reports. Defendants used an automated dispute system to verify the accuracy of Plaintiffs' BAC account. The Court noted that the automated consumer dispute verifications ("ACDVs") in this matter listed only general reasons why Plaintiffs were disputing the payment information on their account and did not fully summarize the nature of Plaintiffs' dispute. The Court also stated that the ACDVs did not describe the contents of the documents submitted by Plaintiffs with their dispute letters in a manner that would alert BAC of the alleged inaccuracies. The Court determined that a reasonable jury could infer that Defendants' reinvestigations were unreasonable based on Defendants' exclusive reliance on an automated system and their failure to provide BAC with a detailed summary of Plaintiffs' letters and supporting documentary evidence.
Emotional Distress. The Court determined that Plaintiffs' credit denials and alleged stress and embarrassment from the negative information listed on their reports was enough to create a fact issue for the jury to determine emotional distress damages, if any. The Court opined that objective evidence was not a requirement for emotional distress damages.
Punitive Damages. The Court reasoned that a reasonable jury could find that the CRAs acted in reckless disregard of their duties by relying exclusively on automated procedures when the they were put on notice of the possible inaccuracy of the automated responses.
As Long as the Account Information is Accurate, Plaintiff has no FCRA Claims Despite Furnisher's Fault
Paul v. Experian Info. Solutions, Inc., 2011 U.S. Dist. LEXIS 68292 (D. Minn. June 22, 2011)
Facts: Plaintiff opened numerous accounts with U.S. Bancorp in January 2007. In early 2008, she went to a bank branch location to pay the outstanding balances and close many of the accounts. The bank representative informed Plaintiff that she was current on her accounts and that they were closed. However, the bank representative missed one credit account that still had a balance.
In April 2008, Plaintiff noticed the account had derogatory reporting history after reviewing an Experian consumer report. She contacted the bank and was given a letter from the bank stating the derogatory reporting was the result of bank error and should be removed. Plaintiff forwarded this letter to Experian and disputed the account. Experian did not rely on the letter because it could not authenticate it but instead sent a dispute verification to the bank which included a summary of the letter. In response to Experian's reinvestigation, the bank verified that the late payments were accurate.
As a result, Plaintiff sued Experian under the FCRA for failing to employ reasonable procedures to assure maximum possible accuracy in Plaintiff's consumer reports and for failing to conduct a reasonable investigation and remove the inaccurate information from her credit file. Experian moved for summary judgment all claims, and Plaintiff moved for partial summary judgment with respect to liability. The Court granted summary judgment for Experian on all claims.
Reasonable Procedures. The Court found that Plaintiff could not meet her prima facie burden to show that Experian failed to follow reasonable procedures to assure maximum accuracy. Experian responded to Plaintiff's dispute by notifying the bank and describing the contents of the letter from the bank that Plaintiff included with her dispute. The Court rejected Plaintiff's claim that the letter itself should have been sent because such procedure would have led to greater accuracy.
Inaccuracy. Plaintiff must first show that there was an inaccuracy on her file with respect to her § 1681e(b) and § 1681i claims. The Court concluded that it did not matter whether it was Plaintiff's fault or the bank's fault that the payments were late because the FCRA concerns accuracy. In other words, the reason for the late payments was irrelevant. The Court also rejected Plaintiff's claim that the information reported was so misleading as to be inaccurate.
Reinvestigation. The Court agreed with other courts that the "furnisher of credit information stands in a far better position to make a thorough investigation of a disputed debt than the CRA does on reinvestigation. With respect to the accuracy of disputed information, the CRA is a third party, lacking any direct relationship to the consumer ...."
Reinvestigation. No language in the FCRA requires a CRA to forward documents it receives in a consumer's dispute to data furnishers in order to satisfy its obligation to include all relevant information regarding the dispute. In this case, Experian accurately summarized the letter in its dispute verification sent to the bank.
FCRA does not Support Private Plaintiff's Claim for Equitable Relief
Picon v. Bank of Am., N.A., 2011 U.S. Dist. LEXIS 65951 (M.D. Fla. June 21, 2011)
Facts: Plaintiff filed suit against Bank of America, FIA Card Services, Trans Union, Equifax, and Experian for violation of the FCRA, seeking statutory and economic damages, attorneys' fees and costs and declaratory relief. In response, Trans Union filed a Motion for Partial Dismissal.
Injunctive Relief. Trans Union filed a motion for partial dismissal pursuant to Fed. R. Civ. P. 12(b)(6) arguing that as a private person, Plaintiff could not seek equitable, declaratory or injunctive relief under the FCRA. The Court found that by excluding equitable relief from the list of remedies available to private individuals, Congress intended to vest injunctive relief solely with the Federal Trade Commission. Thus, the Court held that the FCRA did not support a private plaintiff's request for equitable relief, and Trans Union's Motion to for Partial Dismissal was granted.
Court Finds Arbitration Clauses Dealing with CROA Disputes are Permissible but Stays Case Pending Supreme Court Review
Adams v. ACSO of Tex., Inc., 2011 U.S. Dist. LEXIS 63406 (W.D. Tex. June 13, 2011)
Facts: Plaintiffs sued Defendant, ACSO of Texas, Inc. ("ACSO"), alleging violations of the Credit Repair Organizations Act ("CROA"). ACSO moved to compel arbitration and stay litigation based on the arbitration provision in the credit services contracts executed by Plaintiffs. Alternatively, ACSO moved to stay the case pending the U.S. Supreme Court's decision in Compucredit v. Greenwood or for dismissal for failure to state a claim upon which relief could be granted. While the Court agreed that the case should be sent to arbitration, it stayed all proceedings pending the U.S. Supreme Court's decision.
Arbitration. The Court determined that because the arbitration provision in the credit services contracts covered "all claims based upon a violation of any state or federal constitution, statute or regulation," Plaintiffs' allegations regarding violations of CROA fell within the scope of the arbitration provision.
Credit Repair Organizations Act. There is presently a split between the circuits as to whether CROA provides consumers with the non-waivable right to bring claims in court as opposed to arbitration against credit repair organizations. As the Fifth Circuit had not yet addressed the issue, the Court followed the Third and Eleventh Circuits, rather than the Ninth Circuit, in concluding that CROA does not exclude arbitration as a means of settling disputes under the Act. However, because the U.S. Supreme Court granted certiorari in Compucredit to resolve this issue, the Court decided to stay its order compelling arbitration pending the Supreme Court's holding in CompuCredit.
Court Holds that Plaintiff Failed to Establish Genuine Issue of Material Fact as to Debt Collector's Investigation, Grants Summary Judgment as to § 1681s-2b Claim
Healey v. Trans Union, LLC, 2011 U.S. Dist. LEXIS 53522 (W.D. Wash., May 18, 2011)
Facts: Plaintiff's suit arose out of the efforts of Debt Recovery Solutions, LLC's ("DRS") to collect a debt that it purchased from Embarq, based on a delinquent Sprint cellular telephone account that had been opened under Plaintiff's name. Plaintiff claimed that the delinquent account was not hers. DRS began collection efforts in February 2007, and engaged in numerous back-and-forth communications with Plaintiff over the ensuing year and a half. DRS would send Plaintiff a collection letter, to which she would reply by stating that it was not her debt and also request DRS to verify the debt. In response, DRS would send Plaintiff the underlying Sprint documents. Plaintiff would not respond, and DRS would resume collection efforts. The account then began to reflect adversely on her Experian credit file. When Plaintiff disputed the account with Experian, it was verified as reporting accurately. Plaintiff filed suit and alleged that DRS's conduct violated the FDCPA and the FCRA. DRS filed a motion for summary judgment, which was granted in part and denied in part
Furnisher Duties. Section 1681s-2 of the FCRA imposes two responsibilities on sources that provide credit information to CRAs. First, pursuant to § 1681s-2(a), a furnisher must provide accurate information. Second, pursuant to § 1681s-2(b), a furnisher must investigate and/or correct inaccurate information. These duties are triggered only upon notice of a dispute; specifically, when a person who furnished information to a CRA receives notice from the CRA that the consumer disputes the information. Notice of a dispute received directly from the consumer does not trigger furnisher's duties under subsection (b).
Furnisher Duties. The FCRA expressly creates a private right of action for willful or negligent non-compliance with its requirements. This right of action, however, is limited to claims arising under § 1681s-2(b). A private litigant can bring a lawsuit to enforce § 1681s-2(b), but only after reporting the dispute to a CRA, which in turn communicates it to the furnisher. Duties imposed under § 1681s-2(a), by contrast, are enforceable only by federal or state agencies.
Furnisher Duty to Investigate. A furnisher's investigation of a dispute pursuant to § 1681s-2(b)(1)(A) must be reasonable. It is Plaintiff's burden to show the investigation was unreasonable. The furnisher's duty to conduct a reasonable investigation arises when it receives a notice of dispute from a CRA. Such notice must include all relevant information regarding the dispute received by the CRA. The pertinent question is whether the furnisher's procedures were reasonable in light of what it learned about the nature of the dispute from the CRA's notice of dispute. Although reasonableness is normally a question for the finder of fact, summary judgment is appropriate when only one conclusion about the conduct's reasonableness is possible. To survive summary judgment, it is not enough that DRS's conclusion regarding the validity of the Sprint/Embarq account ultimately proved to be incorrect. Because there was no evidence that the CRAs sent a dispute notice to DRS, the Court concluded that Plaintiff did not meet her burden to establish a genuine issue of material fact regarding whether DRS violated the FCRA by failing to complete a reasonable investigation.
Plaintiff's Conclusory and Unsworn Allegations are Insufficient to Survive Summary Judgment
Nagim v. Equifax Info. Servs., LLC, 2011 U.S. Dist. LEXIS 49425 (D. Colo. May 9, 2011)
Nagim v. Equifax Info. Servs., LLC, 2011 U.S. Dist. LEXIS 49424 (D. Colo. Feb. 8, 2011)
Facts: Plaintiff filed for bankruptcy under Chapter 7 of the Bankruptcy Code on or about October 15, 2005. Other than a tax lien, Plaintiff's debts were discharged as part of the bankruptcy on May 16, 2006. The tax lien was paid and released on August 13, 2008. Plaintiff claimed in a lawsuit filed on February 1, 2010 that Defendant CRAs reported "inaccurate entries on his credit report" and "depressed" his credit scores. Plaintiff argued that Defendants acted unlawfully under the FCRA by maintaining information in Plaintiff's credit file that related to Plaintiff's discharged debts and closed accounts despite Plaintiff's disputes to have the information removed. The CRAs filed motions for summary judgment on all of Plaintiff's claims. The Magistrate found that the CRAs submitted evidence showing that Plaintiff's credit files were accurate, complete, and verifiable and that Plaintiff failed to submit any competent summary judgment evidence in response. Thus, the Magistrate recommended that summary judgment be granted against Plaintiff on all of his claims. Plaintiff objected to the Magistrate's recommendations, but on May 9, 2011, the Court accepted the Magistrate's findings and conclusions and ordered that judgment be entered in favor of Defendants.
Summary Judgment. Once a defendant moving for summary judgment has made a "prima facie demonstration" that the information reporting on a plaintiff's consumer report was accurate, complete, and verifiable, the burden shifts to the plaintiff to put forth sufficient evidence that a reasonable jury could find that information on his credit report was actually inaccurate, incomplete, or unverifiable.
Summary Judgment. A plaintiff that fails to submit any exhibits or sign his pleadings under penalty of perjury so that they can be construed as affidavits has not presented a court with any competent summary judgment evidence.
Court Says ACDV Process is Reasonable as a Matter of Law
Okocha v. Trans Union LLC, 2011 U.S. Dist. LEXIS 39998 (E.D.N.Y. Mar. 31, 2011)
Facts: Plaintiff alleged that Trans Union, Experian, and Equifax violated the FCRA, the New York FCRA, and New York common law by inaccurately reporting five accounts on his consumer report and by failing to conduct an adequate reinvestigation of those accounts. The Court granted Defendants' Motions for Summary Judgment because Plaintiff failed to produce any evidence to support his claims.
Reasonable Procedures. Under § 1681e(b), CRAs have a duty to follow reasonable procedures to assure maximum possible accuracy of consumer information when preparing a consumer report. The threshold question is whether the challenged information was inaccurate. If the information was inaccurate, a plaintiff must then present some evidence from which a trier of fact could infer that a CRA failed to follow reasonable procedures in preparing Plaintiff's consumer report. The Court dismissed Plaintiff's claims under § 1681e(b) because Plaintiff failed to produce any evidence that Defendants did not follow reasonable procedures to ensure the accuracy of the information once notified of the alleged inaccuracies.
Reasonable Procedures. Whether Plaintiff had a legal obligation to pay the debts reported by the underlying creditors turned on questions of law that Defendants could not have possibly resolved through a reinvestigation. Thus, even if the accounts were reported inaccurately, the Court held that Defendants were entitled to report the account information until Plaintiff properly resolved the issues with his creditors in a legal proceeding
Reasonable Reinvestigation. Section 1681i(a) and NY FCRA § 380-f require a CRA to reasonably reinvestigate any disputed information contained within an individual's consumer report after receiving a direct dispute from the consumer. The Court held that even if Plaintiffs' accounts were reported inaccurately, Plaintiff failed to produce any evidence to suggest that Defendants failed to discharge their duty to reinvestigate Plaintiff's disputes in a reasonable manner. Each Defendant properly used the ACDV process and timely notified Plaintiff of the results. Because Plaintiff did not raise any significant factual challenges to the accuracy or reliability of the original source of the reported information and did not make any actual allegations of fraud, the Court held that the ACDV process followed by Defendants was reasonable as a matter of law.
Reinsertion. Section 1681i(a)(5) mandates that disputed information must be deleted from a consumer report if it cannot be verified pursuant to a reinvestigation. Before a CRA may reinsert previously deleted information into a consumer's report, it must certify the accuracy of the information with the furnisher and must notify the consumer of the reinsertion. In this case, the CRAs removed an Alllied Interstate, Inc. account from Plaintiff's consumer report in November of 2006. The original debt was then sold to Harvard Collection Services, who in turn reported the debt again to the CRAs. The Court held that because the account information was provided by two different furnishers and was identified by two completely different account numbers, the appearance of the Harvard Collection Services account did not constitute a reinsertion of previously deleted information under the FCRA.
Reinvestigation. Pursuant to § 1681i(a)(6)(A), a CRA is required to send notice to a consumer following the completion of a reinvestigation of disputed information. The notification must include a notice that the consumer has a right to add a statement to his file disputing the accuracy or completeness of the information. While Equifax failed to send Plaintiff a notification of its reinvestigation, the Court held that a CRA was entitled to require proof of proper identification from the consumer under § 1681h(a)(1) before providing such notice. In this instance, Plaintiff failed to comply with repeated requests to provide identifying information, so the Court granted summary judgment on this claim.
Preemption. Section 1681h(e) prohibits a consumer from bringing any action or proceedings for defamation, invasion of privacy, or negligence except as they relate to false information furnished with malice or willful intent to injure such a consumer. Because Plaintiff failed to provide any evidence supporting his allegations that Defendants showed malice or willful intent to injure and because the procedures Defendants utilized were reasonably calculated to assure accuracy in the consumer reports it produced, the Court held that Plaintiff's state common law claims for defamation, invasion of privacy, false light and negligence were preempted by the FCRA and dismissed.
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