Failure to Correct Mixed Credit Report Exposes Credit Bureau to Punitive Damages

November 30th, 2010 by krista


IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

 

TERESA PRICE                          CIVIL  ACTION   NO. 09-CV-1332

Plaintiff,

v.

TRANS UNION, LLC

Defendant.

M E M O R A N D U M

 

EDUARDO C. ROBRENO, J.                                               November 23, 2010

 

I. INTRODUCTION

 

This case arises under the Fair Credit Reporting Act,

15 U.S.C. §§ 1681, et seq. (“FCRA”). Plaintiff Teresa Price

(“Plaintiff” or “Price”) claims Defendant Trans Union, LLC

(“Defendant” or “TU”), a national consumer reporting agency

(“CRA”), willfully and/or negligently violated sections 1681e(b)

and 1681i of the FCRA. In particular, Plaintiff claims Defendant

willfully and/or negligently violated the FCRA by failing to

follow reasonable procedures to assure the maximum possible

accuracy of information on Plaintiff’s credit report, as required

by FCRA § 1681e(b).1 Additionally, Plaintiff claims Defendant

willfully and/or negligently violated FCRA § 1681i by failing to

permanently correct inaccuracies in Plaintiff’s credit file within thirty days of disputing such inaccuracies.2 Defendant filed a motion for partial summary judgment.

Defendant contests all of Plaintiff’s § 1681i claims and all of

Plaintiff’s § 1681e(b) claims except those related to a negligent

violation § 1681e(b) in connection with Plaintiff’s disputed

March 12, 2009 credit report. For the reasons stated below,

Defendant’s motion will be denied.3  _       ____

 

II. BACKGROUND

Defendant generates consumer credit reports via a

particularized matching procedure. (Def.’s Mot. at 15.)

Defendant receives credit information from tens of thousands of

sources on a monthly basis. (Id. at 16.) This information is

then processed so that information associated with sufficiently

similar identifying information can be stored together in

electronic files. There are more electronic files than consumers

because identifying information associated with a consumer can

vary from creditor to creditor given that consumers move,

marry/divorce, and change last names. (Id. 16-17.) When a

potential creditor enters identifying information for an

individual the aforementioned matching logic combines all files

which meet the matching criteria and thereafter maintains only

one file on the information. Because exact matches are not

required, two files may mix because the two individuals

represented by the file have common addresses, last names, social

security numbers, etc. When files from different individuals

mix, a “mixed file” is created. (Id. 17-18)

 

Plaintiff’s claims stem from Defendant’s inaccurate

matching procedure. (Id. at 15 (stating TU’s “computer system

uses a matching logic which does not require an exact match of

information being compared”).) Plaintiff alleges that Defendant

has been mixing Plaintiff’s credit information with another

consumer’s credit information for the better part of a decade.

(Pl.’s Resp. at 3.) Plaintiff states that she has disputed the

fact that her file has been mixed with information from another

individual with the same/similar name since as early as November

2001. Moreover, Defendant’s own witnesses and documents confirm

that Plaintiff has disputed the mixed file issue for years. (Id.

at 3, Ex. 1-2.) In 2005 and 2007, Plaintiff was forced to

dispute certain accounts on her credit report that did not belong

to her. (Id.) Despite being warned three times, in 2001, 2005,

and 2007, that Defendant was including another person’s credit

information in Plaintiff’s credit file, Defendant continued to

substantially mix Plaintiff’s credit file in 2009 and 2010. (Id.

at 4.) By March 2009, Plaintiff’s credit file contained various

public records, derogatory accounts, and inquiries that belonged

to another Teresa Price. (Id. at 5.)

 

Plaintiff learned of the 2009 reporting problems on

March 12, 2009, when she was denied financing for a car that she

wanted to purchase for her son. (Id. at 5-6.) Plaintiff alleges

that, in March 2009, once she discovered the various problems on

her credit report she promptly called Defendant and disputed the

information. (Id.) Additionally, Plaintiff advised Defendant

that she had previously waged disputes with Defendant for this

same reason. (Id.) After the March 2009 call, Defendant deleted

one piece of the derogatory information—the bankruptcy, but

Defendant did not investigate, delete, or correct any of the

other public records, accounts, or information on Plaintiff’s

file which did not belong to her. (Id.) Even after Plaintiff

brought suit, in July 2009, Plaintiff alleges that she learned of

erroneous information on her report because her attorney was

provided with a purportedly corrected credit report prior to the

Rule 16 conference; however, this report showed that the majority

of derogatory information belonging to another Teresa Price was

still showing up on Plaintiff’s report. (Id.)

Typically, when Defendant is repeatedly confronted with

a mixed file problem, Defendant puts a “do not merge” tag on the

files that mix. (Id. at 13.) The “do not merge” procedure works

because it uses very strict matching criteria. (Id.) When a

file has a “do not merge” tag placed on it then digit-for-digit

matching of all nine digits of a social security number are

required. Implementing the “do not merge” procedure only takes a

few seconds, and it “involves the mere click of a button on a

computer screen.” (Id. at 15.) Despite the repeated mixing

problems with Plaintiff’s file, Defendant did not employ the “do

not merge” procedure in 2001, 2005, 2007, or 2009. (Id. at 16.)

 

Plaintiff requests actual damages arising from the loss

of credit opportunities, injury to her credit reputation, and

emotional distress deriving from Defendant’s conduct and

Plaintiff’s subsequent credit problems due to the inaccurate

information shown on her credit reports.

 

 

III. MOTION FOR PARTIAL SUMMARY JUDGMENT

 

Defendant seeks summary judgment on all of Plaintiff’s

reinvestigation claims under FCRA § 1681i; all of Plaintiff’s

willfulness claims under FCRA § 1681e(b); and Plaintiff’s §

1681e(b) negligence claims except those relating to Defendant’s

reporting of information, on March 12, 2009, in connection with

Plaintiff’s attempt to obtain a loan to help her son purchase a

car. 4

 

Summary judgment is appropriate if there are no genuine

issues of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). “A motion

for summary judgment will not be defeated by ‘the mere existence’

of some disputed facts, but will be denied when there is a

genuine issue of material fact.” Am. Eagle Outfitters v. Lyle &

Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is

“material” if proof of its existence or non-existence might

affect the outcome of the litigation, and a dispute is “genuine”

if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

 

“After making all reasonable inferences in the

nonmoving party’s favor, there is a genuine issue of material

fact if a reasonable jury could find for the nonmoving party.”

Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d

Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895,

900 (3d Cir. 1997)). While the moving party bears the initial

burden of showing the absence of a genuine issue of material

fact, the non-moving party “may not rely merely on allegations or

denials in its own pleading; rather, its response must—by

affidavits or as otherwise provided in [Rule 56]—set out specific

facts showing a genuine issue for trial.” Fed. R. Civ. P.

56(e)(2).

 

A . Defendant Cannot Assert the Accuracy Defense

Defendant states that Plaintiff’s § 1681(e)(b) and §

1681i claims should be dismissed because Plaintiff has not

established that information in Plaintiff’s credit report was

inaccurate. When a Plaintiff claims a violation of § 1681(e)(b)

or § 1681i, the Plaintiff has the burden of proving that the

disputed information is inaccurate. Cortez v. Trans Union, LLC,

617 F.3d 688, 708 (3d Cir. 2010) (stating negligent noncompliance

of § 1681(e)(b) consists of the following four elements: (1)

inaccurate information was included in a consumer’s credit report

. . . .)(internal citation omitted); Klotz v. Trans Union, LLC,

246 F.R.D. 208, 213 (E.D. Pa. 2007) (stating that § 1681i claims

require a showing that the disputed information is inaccurate

(citing Cushman v. Trans Union Corp., 115 F.3d 220, 226-27 (3d

Cir. 1997))). Defendant contends that Plaintiff has not met her

burden of establishing that the information contained in her

consumer reports was inaccurate therefore the accuracy defense

bars Plaintiff’s § 1681(e)(b) and § 1681i claims.

 

Typically, the accuracy defense is an issue of fact.

Here, Plaintiff has pointed to facts of record that create a

genuine question of material fact. “[A] consumer report cannot

be ‘accura[te]’ under either section 1681e(b) or section 1681i if

it contains information that is legally incorrect.” Crane v.

Trans Union, LLC, 282 F. Supp. 2d 311, 318 (E.D. Pa. 2003)

 

(citing Cushman, 115 F.3d at 226-27). In Defendant’s motion,

Defendant recognizes that Plaintiff alleged an inaccuracy

regarding a bankruptcy, two tax lines, and eight “tradelines.”

(Def.’s Mot. at 2.) As such, Defendant acknowledges that there

were disputed inaccuracies. Furthermore, Plaintiff states that

these are not the only inaccuracies; however, even if they were,

they are more than enough to raise a genuine issue of material

fact as to evidence of an inaccuracy. (Pl.’s Resp. at 21-22

(establishing at least thirty-seven inaccuracies by pointing to

responses to interrogatories, Defendant’s credit file records,

and third party discovery).)

 

Plaintiff has pointed to facts of record that, if

correct, would show there were inaccuracies in Plaintiff’s

consumer reports. Moreover, Defendant has acknowledged there

were certain inaccuracies. Based on the foregoing, Defendant

cannot assert the accuracy defense and summary judgment will be

denied.

 

B.            Plaintiff’s § 1681i Claims are Not Inappropriate

Because There is a Genuine Issue of Material Fact as to

Whether the Allegedly Inaccurate Accounts Were Timely

Deleted, Never Disputed, or Accurate

 

Defendant states that Plaintiff does not have a valid

claim under § 1681i because any disputed information was

investigated and deleted within thirty days of receiving notice

of dispute. (Def.’s Mot. at 9 (stating TU deleted the Key Bank,

 

Capital Credit, CBE, and Comp credit accounts, and the Chapter 7

Bankruptcy).) Plaintiff, however, argues that she has a valid §

1681i claim based on her March 12, 2009 phone call. During this

phone call, Plaintiff disputed various pieces of false

information that were on her consumer report. Plaintiff points

to her Declaration dated May 24, 2010 to prove that, on March 12,

2009, she complained of various items on her consumer report

including a bankruptcy, various public records, credit accounts,

and personal information. (Pl.’s Resp. at Ex. 9.) Defendant,

however, argues that according to Plaintiff’s deposition, taken

prior to the Declaration, Plaintiff only disputed the invalid

bankruptcy during her March 12, 2009 phone call.

 

Defendant states that the Court should not consider the

Declaration made after Plaintiff’s deposition, because it is a

“sham.” Consequently, before determining whether Plaintiff has a

valid § 1681i claim, the Court must first determine if the

Declaration can be considered or whether it violates the sham

doctrine. The Federal Rules of Civil Procedure do not prescribe

how courts should address contradictory subsequent affidavits.

However, the Third Circuit has held that “a party may not create

a material issue of fact to defeat summary judgment by filing an

affidavit disputing his or her own sworn testimony without

demonstrating a plausible explanation for the conflict.” Baer v.

Chase, 392 F.3d 609, 624 (3d Cir. 2004) (citing Hackman v. Valley

 

Fair, 932 F.2d 239, 241 (3d Cir. 1991)). This principle of

summary judgment practice is often referred to as the “sham

affidavit doctrine.”

 

A sham affidavit cannot raise a genuine issue of

material fact because it is merely a variance from earlier

deposition testimony; therefore, no reasonable jury could rely on

it to find for the nonmovant. Jiminez v. All Am. Rathskeller,

Inc., 503 F.3d 247, 253 (3d Cir. 2007). If an affidavit is

offered solely for the purpose of defeating summary judgment, it

is proper for the trial judge to conclude that no reasonable jury

could accord that affidavit evidentiary weight and that summary

judgment is appropriate. Id.

 

Some federal courts have adopted a particularly harsh

version of the sham affidavit doctrine. These courts hold that

whenever a subsequent affidavit contradicts prior deposition

testimony it should be disregarded. Id. at 254. The Third

Circuit, however, has adopted a more flexible approach. See

Baer, 392 F.3d at 624; Hackman, 932 F.2d at 241; Martin v.

Merrell Dow Pharm., Inc., 851 F.2d 703, 705-06 (3d Cir. 1988);

Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir.

1991). In Baer, the Third Circuit stated that “[w]hen there is

independent evidence in the record to bolster an otherwise

questionable affidavit, courts generally have refused to

disregard the affidavit.” 392 F.3d at 625. Such corroborating

evidence may establish that the affiant was “understandably”

mistaken, confused, or not in possession of all the facts during

the previous deposition. Id. Additionally, the Third Circuit

has held that an affiant has the opportunity to offer a

“satisfactory explanation” for the conflict between the prior

deposition and the affidavit. Hackman, 932 F.2d at 241. When a

party does not adequately explain the contradiction, it is

appropriate for the district court to disregard the subsequent

affidavit.

 

In this case, Plaintiff filed a sur-reply explaining

that the Declaration does not contradict Plaintiff’s prior

deposition but, rather, supplements the deposition. Plaintiff

points out that the deposition makes reference to inaccuracies

other than the bankruptcy and the Declaration was created to

elaborate on these other inaccuracies. (Pl.’s sur-reply at 1-2.)

During the deposition, Plaintiff was asked how she learned that

there was a bankruptcy on her credit. Plaintiff responded,

“[b]ecause I was trying to assist my son in buying a car and my

credit report came back with a bankruptcy among other things.”

(Id. (citing Ex. 1, Pl.’s Dep. Trans. 69:5-14(emphasis added)).)

Plaintiff states that during her deposition Defendant never fully

questioned her about inaccuracies other than the bankruptcy;

consequently, the Declaration was submitted to clarify the

issue.5  Based on the foregoing, the Declaration cannot be deemed

a contradicting document and does not fall within the sham

doctrine.

 

Finding that the Declaration properly supplements

Plaintiff’s previous answers at deposition, the Court must next

determine whether there are any questions of material fact in

regards to Plaintiff’s § 1681i claim. Section 1681i(a)(1)(A)

requires CRAs, such as Defendant, to “conduct a reasonable

reinvestigation to determine whether the disputed information

[was] inaccurate . . . .” Section 1681i(a)(5)(A) states that, if

after the reinvestigation any item is found to be incorrect or

incomplete, “the consumer reporting agency shall—(i) promptly

delete the item . . . or modify that item or information, as

appropriate, based on the results of the reinvestigation.”

Moreover, CRAs are charged with preventing “reinsertion” of

previously deleted material back onto the consumer’s credit file.

15 U.S.C. § 1681i(a)(5)(B), amended on other grounds by, by Pub.

L. No. 111-203 (July 21, 2010).

 

Plaintiff argues that sections 1681i(a)(1)(A) and

(a)(5)(A) were violated because Defendant failed to properly

 

 

reinvestigate Plaintiff’s March 12, 2009 notification of false

public records, credit accounts, and erroneous personal

information. Additionally, Section 1681i(a)(5)(B) was violated

given that Defendant reinserted the inaccurate bankruptcy, which

was previously deleted on March 12, 2009, back into Plaintiff’s

consumer report on July 13, 2009.

 

Based on Defendant’s failure to adequately tend to all

the inaccuracies on Plaintiff’s file as of March 21, 2009, and

the reinsertion of the bankruptcy, Plaintiff has brought a valid

§ 1681i claim against Defendant and summary judgment will be

denied.

 

C.            Plaintiff’s § 1681e(b) Claim is Not Inappropriate

Because There is a Genuine Issue of Material Fact as to

Whether Plaintiff Cannot Establish Causation

 

When a Plaintiff claims a violation of § 1681e(b) the

Plaintiff has the burden to prove that any inaccurate information

in the consumer report caused the consumer’s injury. Cortez, 617

F.3d at 708 (“Negligent noncompliance with §1681e(b) consists of

the following four elements: . . . (3) the consumer suffered

injury; and (4) the consumer’s injury was caused by the inclusion

of the inaccurate entry.”). Defendant argues that Plaintiff

cannot show she was denied credit and suffered credit harm

because of the Defendant’s negligent or willful allowance of

inaccurate information in Plaintiff’s credit report. (Def.’s

Mot. at 12.) Defendant states that any credit harm was due to

the accurate unfavorable information that was on Plaintiff’s

credit report. (Id.) Plaintiff, however, points out that even

if she has not established that her credit harm was due to

Defendant’s actions, summary judgment and dismissal of

Plaintiff’s § 1681e(b) claims is unwarranted because she has

asked for three types of damages, credit harm being only one of

these types of damages. (Pl.’s Resp. at 26.)

The three types of damages Plaintiff asks for are (1)

credit harm/lost credit opportunities; (2) credit defamation; and

(3) emotional distress (anxiety, frustration, embarrassment,

humiliation, etc.). Additionally, the FCRA permits statutory

damages, punitive damages, and attorneys’ fees and costs.

Defendant does not challenge Plaintiff’s evidence or right to

recover actual damages for credit defamation and emotional

distress. The only area of contention is Plaintiff’s claim for

credit harm/lost credit opportunities; therefore, even if

Defendant is correct, Plaintiff could still pursue other valid

theories of recovery. Additionally, summary judgment as to

Plaintiff’s claim for credit harm/lost credit opportunities is

inappropriate because there are genuine issues of material fact

concerning causation.

 

A claim for credit harm/loss credit opportunities can

form the basis for an award of damages under the FCRA. Lawrence v.

Trans Union LLC, 296 F. Supp. 2d 582, 588 (E.D. Pa. 2003). The

Third Circuit has held that it is a jury issue whether a credit

reporting inaccuracy was a “substantial factor” in a lost credit

opportunity and that a consumer-plaintiff is minimally required

to present some evidence of a credit inaccuracy and then some

evidence of applying for and not obtaining credit. Philbin v.

Trans Union Corp., 101 F.3d 957, 966-70 (3d Cir. 1996), abrogated

on other grounds, Cortez, 617 F.3d at 688. Based on the

foregoing, a Plaintiff can establish credit harm without

pinpointing causal precision. Here, there is evidence from which

the jury could find actual damages of credit harm/loss of credit

opportunities due to the erroneous information placed on

Plaintiff’s credit report. For example, Plaintiff was harmed by

Defendant’s reporting of inaccurate and derogatory information to

Elan Financial in February 2009 and on other occasions. (Pl.’s

Resp at Ex. 22.) A jury could find that Plaintiff’s mixed file

was a substantial factor in her inability to secure credit;

consequently, summary judgment should be denied.

 

 

D.            Defendant Erroneously Argues that Plaintiff’s Negligent

and Willful § 1681i Claims Fail as a Matter of Law

Section 1681n provides damages when a Defendant

willfully violates the FCRA. The meaning of willful is to be

ascertained according to the common law. Safeco Ins. Co. Of

America et al. v. Burr et al., 551 U.S. 47, 57 (2007). The

common law treated actions in “reckless disregard” of the law as

“willful” violations. Id. As such, “[t]he standard civil usage

thus counsels reading § 1681n(a)’s phrase ‘willfully fails to

comply’ as reaching reckless FCRA violations . . . .” Id.

Additionally, the Court in Safeco implied that knowing violations

of the FCRA are “willful” violations. Id. at 59 (stating knowing

violations are a more serious subcategory of willful violations).

Following Safeco, the Third Circuit has held that willful FCRA

violations can be “knowing” or ones that show a “reckless

disregard” for consumer rights. Cushman, 115 F.3d at 227.

Moreover, the Cushman court held that a defendant may willfully

violate the FCRA by actions that are “on the same order as

willful concealments or misrepresentations.” Id. Based on the

foregoing, summary judgment is inappropriate when there are

genuine issues of material fact as to whether Defendant knowingly

engaged in acts that violated the FCRA, acted with reckless

disregard as to violating the FCRA, or willfully concealed or

misrepresented information in an effort to skirt the requirements

of the FCRA.

 

At a minimum, Plaintiff can defeat summary judgment as

to her § 1681i claims by showing Defendant acted in reckless

disregard of Plaintiff’s rights when engaging in investigations

pursuant to § 1681i. Recklessness is commonly interpreted as

conduct violating an objective standard—action entailing an

unjustifiably high risk of harm that is either known or so

obvious that it should be known. See Safeco, 551 U.S. at 49.

Whether the Defendant’s conduct violates this objective standard

is a fact-bound inquiry that should be answered by a jury. See

Cushman, 115 F.3d at 223, 227 (reversing and remanding a trial

court judgment as a matter of law and instructing trial court to

consider Plaintiff’s FCRA wilfulness claim in light of the

reckless disregard standard). This is consistent with a number

of Eastern District decisions which, following Cushman, have

rejected motions for summary judgment in FCRA willfulness cases

finding that the reckless disregard determination should be left

for the jury. See Lawrence, 296 F. Supp. 2d at 590 (denying

summary judgment to CRA for FCRA willfulness claim); Crane, 282

 

F. Supp. 2d at 321 (same); Evantash v. G.E. Capital Mortgage

Servs., Inc., No. 02-cv-1188, 2003 WL 22844198, at *8 (E.D. Pa.

Nov. 25, 2003) (same).

 

Here, the issue of whether Defendant acted in reckless

disregard when investigating Plaintiff’s file and violated §

1681i presents a jury question. Plaintiff has provided evidence

that, if true, shows that her file continually had inaccurate

facts, Plaintiff notified Defendant of the inaccuracies on

various occasions, and Defendant repeatedly let the inaccuracies

continue for decades. (Pl.’s Resp. at 43.) Plaintiff put

Defendant on notice in 2001, 2005, 2007, and 2009 that another

consumer’s information was being mixed into her file. Even

though Defendant was on notice of the continual problems with

Plaintiff’s file, Defendant failed to use its “do not merge”

procedures to prevent the mixing. Additionally, in March 2009,

after being put on notice of various inaccuracies, Defendant only

investigated one inaccuracy—the bankruptcy. Moreover, in

violation of § 1681i(a)(5)(i), Defendant allowed for the

inaccurate bankruptcy, reported in March 2009, to be reinserted

onto Plaintiff’s file.

Given Defendant’s general knowledge of the mixed file

problem and Defendant’s failure to act to ensure these problems

did not continue, a jury could reasonably find that Defendant

acted in reckless disregard and summary judgment should be

denied.6

 

E.            Defendant Erroneously Argues that Plaintiff’s Willful §

1681e(b) Claim and Negligent § 1681e(b) Claim Fail as a

Matter of Law Section 1681e(b) requires CRAs to follow “reasonable

procedures to assure maximum possible accuracy” when preparing

consumer reports. Defendant argues that to determine whether

Defendant willfully violated this section of the FCRA, the Court

must examine whether the Defendant’s reading of the statute was

objectively unreasonable. Safeco, 551 U.S. at 69-70. Defendant

argues that, based on Safeco, Defendant’s reading of the statute

is a “threshold” question. Defendant states that its

interpretation of the statute was not objectively unreasonable

thus the matching procedures it enacted were in accordance with

the requirements of § 1681e(b).

Safeco, however, did not hold that when determining

whether there is a willful violation of the FRCA the Court must

always first do a threshold test and determine whether a

Defendant’s “reading” of the statute was objectively

unreasonable. In Safeco, the issue before the Court was whether

there was a willful violation of § 1681a(k)(1)(B)(I). The Court

had to interpret that section’s use of the term “increase” and

determine whether Defendant’s interpretation of that term was

objectively unreasonable because the FCRA is silent on this

point. Additionally, no court of appeals or the Federal Trade

Commission (“FTC”) had issued guidance on interpretation of the

term “increase.” Id. at 69-70.

 

This case, however, is distinguishable from Safeco

because § 1681e(b) does not contain any statutory text that “is

less than pellucid and which has not been construed in detail by

the Courts of Appeals.” (Pl.’s sur-reply at 5.) Defendant’s

belief in its reading of the statute is no defense to willfulness

under Safeco. What is at issue is not Defendant’s subjective

reading of the statute, but rather whether the reading of the

statute proposed by the Defendant was objectively reasonable in

this case. Defendant cannot argue that a reasonable person would

be confused as to the meaning of its FCRA duties under § 1681e(b)

given that, at the time, at least three courts of appeals had

construed the meaning of § 1681e(b) against TU in mixed file

cases similar to this one. (Pl.’s Resp. at 48.)

 

Additionally, the FTC specifically warns CRAs to

adequately review their procedures when they learn of errors in

their reports that may indicate systemic problems. An example of

an error that would require such review is the issuance of a

consumer report “containing information on two or more consumers

(e.g., information that was mixed in the file) in response to a

request for a report on only one of those consumers.” 16 C.F.R.

pt. 600, App. (Part 3.A of commentary on § 607 of FCRA, codified

at section 1681e(b)).

 

Plaintiff’s claim is predicated on Defendant’s repeated

failure to use the “do not merge” procedure and its unwillingness

to permanently correct Plaintiff’s mixed file despite her

disputes that another person’s information appeared on her credit

report in 2001, 2005, 2007, and 2009. Defendant has a “do not

merge procedure” which is its only remedy to mitigate the

occurrence of a mixed file. (Pl.’s Resp. at 13.) Depositions

indicate that the “do not merge” procedure is used to prevent

mixed files if Defendant knows of a mixing problem. The

procedure uses strict matching criteria. (Id. at 14.) When

Defendant is aware of a problem with a file it puts a tag on it

so it will not merge with another file unless there is a digit­for-digit match for all nine digits of the social security number. (Id.) Here, Plaintiff has pointed to facts of record

that a jury could reasonably find that Defendant acted in

reckless disregard of the FCRA by not implicating its “do not

merge” procedure even though Plaintiff continually disputed

various problems on her credit reports and informed Defendant

that another person’s information was appearing on her credit

reports. (Pl.’s sur-reply at 4.) Based on the foregoing,

summary judgment as to Plaintiff’s claims for willful or

negligent violations of § 1681e(b) will be denied.

 

 

IV. CONCLUSION

 

For the foregoing reasons, Defendant’s motion for

partial summary judgment is denied. An appropriate Order will

follow.

 

1 Title 15, section 1681e(b), of the United StatesCode provides: (b) Accuracy of report

Whenever a consumer reporting agency prepares a

consumer report it shall follow reasonable

procedures to assure maximum possible accuracy of

the information concerning the individual about

whom the report relates.

15 U.S.C. § 1681e(b), amended on other grounds by,

Pub. L. No. 111-203 (July 21, 2010).

2 Title 15, section 1681i(a)(1)(A), of the United

States Code provides: (a) Reinvestigations of disputed information

(1)Reinvestigation required.-­

(A) In general.–Subject to subsection (f) of this

section, if 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 and

record the current status of the disputed

information, or delete the item from the file in

accordance with paragraph (5), before the end of

the 30-day period beginning on the date on which

the agency receives the notice of the dispute from

the consumer or reseller.

15 U.S.C. § 1681i(a)(1)(A), amended on other

grounds by, Pub. L. No. 111-203 (July 21, 2010).

3 The Court finds that summary judgment is inappropriate

as to all of Plaintiff’s claims for negligent violations of

sections 1681e(b) and 1681i. Plaintiff has pointed to facts of

record that raise a genuine issue of material fact as to whether

Defendant violated sections 1681e(b) and 1681i willfully, which

is a much higher standard than mere negligence. Consequently,

the Court will not individually analyze each claim for a negligent FCRA violation.

4 Discovery in the case is now complete.

5 A review of Plaintiff’s deposition reveals that, in

reference to the March 12, 2009 dispute, Defendant’s attorney

only questioned Plaintiff about the bankruptcy even though

Plaintiff alerted Defendant’s attorney to various inaccuracies

when questioning on the topic began. (Pl.’s sur-reply at 1-2

(citing Ex. 1, Pl.’s Dep. Trans. 69:5-14 and 88:1-6).)

6 Since negligence is a lower standard than willfulness,

Defendant’s motion for summary judgment as to whether Defendant

negligently violated § 1681i will also be denied. See supra n.3,

at 3.

 

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