Opinion
Civil Action No. 2:02cv0304.
June 4, 2004
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration, Defendant Experian Information Solutions, Inc.'s ("Experian") Motion for Summary Judgment, or Alternatively, Motion for Partial Summary Judgment and Memorandum in Support (Doc. #41). Experian asserts that they are entitled to summary judgment, in part or in whole, on Plaintiff, Cynthia Comeaux's ("Comeaux") claims based on (1) Comeaux failing to bring her reinvestigation claims within two years of her last communication with Experian; (2) Comeaux failing to present any evidence that she sustained damages (economic and non-economic), which are related to inaccurate date contained on an Experian credit report; and (3) Comeaux not presenting any evidence that Experian engaged in willful conduct to harm her. After due consideration, this Court finds that both Experian' motion should be denied (Doc. #41).
BACKGROUND
On December 11, 2002, Comeaux filed this lawsuit under Sections 1681e(b) and 1681i(a) of the Fair Credit Reporting Act ("FCRA"), claiming that a mixed credit file has caused her to be denied credit with various lenders. More specifically, Comeaux claims that Experian combined her credit file with the credit file of another consumer, Mrs. Cindy Carr, thereby causing adverse credit that belonged to Mrs. Carr to be placed in Comeaux's credit file. Some of the inaccurate and derogatory information in Comeaux's credit file included: misspellings of Comeaux's name; that she had filed Chapter 7 bankruptcy; a listing of at least 70 trade lines and collection accounts; that she was married to another woman, Bridget, who is Mrs. Carr's teenage daughter; a listing of Mrs. Carr's home mortgage; that she had joint accounts with Louis Carr, Mrs. Carr's ex-husband; that she worked and lived in New Orleans; a listing of false telephone numbers, employer data; and finally, five different social security numbers, with only one being Comeaux's.
Comeaux did contact Experian several different times in January and October 1999, and informed them that she might be a victim of identity fraud. There is mention in the record that Mrs. Carr also contacted Experian in 1997 regarding discrepancies in her credit file. Experian asserts that Comeaux never informed them that her file was a mixed credit file, and thus, placed a fraud alert on her file. Furthermore, Experian claims that Comeaux's personal identifiers (i.e. her name and social security number) are not so unique, which could have created the combination of two separate files. These similarities are proof, according to Experian, that there is a need for flexibility in the Credit Reporting Industry.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when there is no genuine issue of material fact. FED. R. CIV. P. 56(c); Shackleford v. Deloitte Touche, L.L.P., 190 F.3d 398, 403 (5th Cir. 1999). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). In order to survive a motion for summary judgment, Rule 56(e) requires the nonmovant to set forth specific facts showing that there is a genuine issue for trial. Hightower v. Texas Hosp. Ass'n., 65 F.3d 443, 447 (5th Cir. 1995). The non-moving party may not rely on general averments to meet this burden. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).
The party seeking summary judgment always bears the initial responsibility of informing the district court of the basis of its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant produces such evidence, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Id. at 322.
The nonmovant can satisfy its burden by tendering depositions, affidavits, and other competent evidence to buttress its claim. International Shortstop, Inc. v. Rally's, 939 F.2d 1257, 1263 (5th Cir. 1991). When considering a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) ( quoting United States v. Diebold, 369 U.S. 654, 655 (1962)); Hansen v. Continental Insur. Co., 940 F.2d 971, 975 (5th Cir. 1991). Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
ANALYSIS
A. Whether or not Comeaux has failed to bring her reinvestigation claims within two years of her last communication with Experian."An action to enforce liability created under this subchapter may be brought . . . within two years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under this subchapter to be disclosed to an individual and the information so misrepresented is material to the establishment of the defendant's liability to that individual under this subchapter, the action may be brought at any time within two years after discovery by the individual of the misrepresentation." See Title 15 U.S.C. § 1681p [emphasis added].
Experian asserts that Comeaux's claims under 15 U.S.C. § 1681i are now time barred since they were not brought within two years from when any liability arose. 15 U.S.C. § 1681p. Liability attaches to a credit reporting agency when a consumer disputes the completeness or accuracy of their credit report, and the credit reporting agency fails to reinvestigate the allegation within 30 days from when the dispute is made. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Even though Experian believes that they were never prompted to conduct a reinvestigation pursuant to 15 U.S.C. § 1681i, for the purposes of this motion, Experian assumes that Comeaux's last communication on October 19, 1999 expressed a dispute.
If the last dispute was communicated on October 19, 1999, and 30 days had lapsed from when any reinvestigation could occur, then according to Experian, any investigation claims by Comeaux are now time barred as of November 18, 2001. Since Comeaux filed suit on December 11, 2002, Experian believes that Comeaux is without recourse and that summary judgment is proper as to Comeaux's 15 U.S.C. § 1681i claims.
According to some Courts, Title 15 U.S.C. § 1681i[a] creates a duty upon credit reporting agencies to maintain and use reasonable procedures to investigate and correct any inaccurate or incomplete information brought to its attention by the consumer or otherwise. See Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1160 (11th Cir. 1991); see also Dalton v. Capital Associated Industried, 257 F.3d 409 (4th Cir. 2001). When claims are brought against credit reporting agencies for violating this duty, a court is "called upon to determine whether the credit reporting agency could have discovered an error in a particular report through a reasonable investigation." Id. More specifically, a claim brought under section 1681i[a] is proper when "a particular credit report contains a factual deficiency or error that could have been remedied by uncovering additional facts that provide a more accurate representation about a particular entry." See Williams v. Colonial Bank, 826 F. Supp. 415 [U.S.D.C.M.D. Ala. 1993].
In order for Comeaux to escape the two year statute of limitations as expressed in 15 U.S.C. § 1681p, an exception must be found where Experian has materially and willfully misrepresented any information that is material to the establishment of Experian's liability, i.e., that they failed to maintain and use reasonable procedures to investigate and correct any inaccurate or incomplete information brought to its attention by Comeaux or otherwise. See 15 U.S.C. § 1681p; see also Cahlin, 936 F.2d at 1160. If Comeaux satisfies the exception as emphasized above, then her cause of action survives 15 U.S.C. § 1681p's statute of limitations as long as the action was brought any time within two years after Comeaux discovered the misrepresentations. See 15 U.S.C. § 1681p.
According to Comeaux, she was advised about various derogatory date found on her credit report when she was denied a loan by Hibernia National Bank in late December 1999 or in early January 1999. As a result, Comeaux contacted Experian as well as two other national credit reporting agencies. Comeaux's dispute communications with Experian began on January 4, 1999, when she telephoned and faxed Experian a request for a copy of her credit file. See Comeaux's 11-11-03 deposition, pp. 86-97, 100-101, 108, 110-111, 160 ("Comeaux's depo."). Comeaux further asserts that she telefaxed a copy of her January 4, 1999 Trans Union credit report to Experian that same day, and "marked up" or circled, what she believed to be errors in her credit file. See Comeaux's depo. 11-11-03, pp. 113-136. Comeaux expressed her concern with Experian that someone may have stolen her identity.
In a January 6, 1999 letter, Experian stated that they did not process any credit report disputes made by Comeaux because Comeaux's social security number did not appear on the file. See Experian deposition of G. Mathews, Vol. 2, 1-29-04, pp. 95-99 ("Experian depo. G. Mathews"); see also Comeaux depo, Exhibit 2, pp. 86, 88-89, 99. According to Comeaux, Experian instructed her to fill out a social security administration form and return it. See G. Mathews, Vol. 2, p. 95-99. As such, Comeaux's dispute letter was filed away in their mail room. See Id. at 97; see also Exhibit 9, p. 1 of Experian deposition of S. Stafford ("Experian depo. S. Stafford").
Comeaux has produced evidence that Experian did in fact know who she was and which credit file contained her credit data. See Experian depo. S. Stafford; see also Experian's Administrative report and 7X reports, p. 1, EXPO12. Page one of Exhibit 9, as referenced above, indicates that Experian had an identifiable "PIN #" associated with Comeaux credit file, and that Gloria Mathews, an employee of Experian, added a perfunctory fraud alert to Comeaux's credit file on January 4, 1999 (likely in response to Comeaux's concern that her identity had been stolen), and refused to process disputes, claiming that Comeaux's social security number did not appear on the file. Contrary evidence to Experian's reasons to "shelve" or delay any efforts to process Comeaux's disputes has been produced by Comeaux in Experian's Administrative report and 7X reports ("7X reports"). See Exhibit 9, p. 1 of Experian depo. S. Stafford.
Experian's 7X reports show that Comeaux's credit file contains her identifiable "PIN #" and that numerous name row elements contained in that data file list Comeaux's social security number. See Experian's Administrative report and 7X reports, p. 1-2, EXPO144-0145. According to Comeaux, Experian did not need Comeaux to fill out a social security administration form in order to find her credit file. Gloria Mathews was able to retrieve Comeaux's credit file under Comeaux's identifiable "PIN #." See Experian depo. G. Mathews; see also Jensen v. Experian Info. Solutions, Inc., 2001 U.S. Dist. Lexis 15134 (U.S.D.C.E.D. Tex. 2001).
On October 18, 1999, Comeaux received a letter from Experian informing her what to do if she was in fact an identity theft or fraud victim. Evidence produced by Comeaux suggests that she was under the impression that Experian was making the necessary efforts to rectify any problems with her credit file. See Comeaux's Response, p. 6. Additional evidence, as discussed below, however, illustrates that no actions were taken to reinvestigate the inaccuracies found on Comeaux's credit file, and none of the multiple social security numbers or aliases were removed.
On October 19, 1999, Comeaux contacted Experian requesting proper information to clear her records and dispute any incorrect information. Experian replied on October 25, 1999, and sent Comeaux a copy of her credit report, but additional unrelated social security numbers and alias were still listed in the report despite the fact that many of them had been "mark up" or circled in the Trans Union Credit report supplied by Comeaux to Experian in January 1999. See Comeaux's depo. 11-11-03, pp. 113-136. Rebecca Holt, an employee of Experian, indicated that when more than one social security number is found in a credit file, Experian simply considers it to be a typographical error and ignores it. See Experian deposition, R. Holt, Vol. 2, 1-29-04, pp. 111-112 ("Experian depo. R. Holt"); see also Experian depo., G. Mathews, Vol. 2, 1-29-04, p. 102.
Comeaux's 1999 contacts with Experian regarding inaccurate and derogatory data found in her credit report are not the first notifications received by Experian regarding Comeaux's particular file. As discussed above, one of the aliases, social security numbers, and other personal credit identifiers found in Comeaux's credit report belonged to Cindy Carr. In 1997, Mrs. Carr contacted Experian after being denied credit, and like Comeaux, requested a copy of her credit report and thereafter lodged disputes. Experian's 7X reports indicate that Comeaux and Carr's credit files have been mixed as early as 1997. These contacts by Carr further demonstrate that Experian was made aware of mixed credit files, let alone those involving Comeaux, prior to any of Comeaux's disputes lodged in 1999.
The evidence presented by Comeaux demonstrates a genuine issue of material fact for trial in that Experian materially and willfully misrepresented information that is material to the establishment of their liability; specifically, with regards to maintaining and using reasonable procedures to investigate and correct any inaccurate or incomplete information brought to its attention. Comeaux was unaware at the time that she was a potential victim of a mixed credit file, but instead, believed that she may have been a victim of identity theft. This mistaken belief by Comeaux is not unreasonable considering that their were multiple identities in her credit file.
The January 4, 1999 phone call, in which Comeaux lodged her disputes regarding credit inaccuracies, as well as her efforts to provide Experian with additional data, (the "marked up" Trans Union Credit Report"), provided sufficient information for a major credit reporting agency, such as Experian, to investigate whether Comeaux was indeed a victim of identity theft, or if other reasons, such as a mixed credit file, could be the source of her credit reporting problems. Experian is in the best position to recognize the source of any errors present in a consumer's credit report, but in Comeaux's case, they blatantly failed to act despite the numerous information presented.
The term willful, means "voluntary and intentional, but not necessarily malicious." See BLACK'S LAW DICTIONARY 1593 (7th ed. 1999). The idea that a major credit reporting agency (especially one familiar with mixed file cases, and put on notice two years prior by Mrs. Carr) to carte blanche accept Comeaux's dispute that she is suffering from identity theft and not even investigate whether or not other potential causes exist (such as mixed credit files), or to correct any of the inaccuracies found in Comeaux's file, creates a genuine issue of material fact as to whether there is a willful misrepresentation that reasonable procedures were in place to resolve any credit file problems. More specifically, a genuine issue of material fact is created by Experian placing a fraud alert on an account, falsely informing Comeaux that her social security number was not on file or attainable, and ignoring any discrepancies (as referenced in Experian depo. R. Holt) is a voluntary and intentional misrepresentation by Experian that reasonable procedures were in effect.
Comeaux's discovery of a genuine issue of material fact regarding Experian's material and willful misrepresentations occurred during the discovery period, and after her suit was filed on December 11, 2002. As such, this Court finds that Experian's motion for summary judgment with regard to Comeaux 15 U.S.C. § 1581i claims should be denied and that Comeaux has met the exception under 15 U.S.C. § 1681p.
B. Whether or not Comeaux failed to present any evidence that she sustained damages, which are related to inaccurate data contained on an Experian credit report.
Experian's second issue for summary judgment is the assertion that Comeaux has not provided any competent evidence of damages, or a causal link, between her professed damages and Experian's inaccurate reporting. According to Experian, Comeaux has done nothing more than prove that inaccurate information appeared on her credit report. Furthermore, Experian believes that if Comeaux had contacted them in the Spring of 2002, then Experian would have had ample opportunity to review and correct her credit file. As a result of Comeaux's alleged decision to "withhold information," Experian believes that Comeaux's conduct is a superceding and intervening act that breaks any possible causal connection between her damages and any inaccurate reporting by Experian. Experian also believes that Comeaux was a poor credit risk despite any inaccurate credit reporting. Comeaux's credit file already had correct derogatory data in her credit file, which, according to Experian, may have been the cause of any credit denials.
The FCRA is not a strict liability statute and permits recovery of "any actual damages sustained by the consumer as a result of [Experian's] failure" to adhere to the statute. See Cahlin, 936 F.2d at 1156; see also 15 U.S.C. § 1681n, 1681o. Comeaux does have an affirmative duty to link any inaccurate reporting to her denial of credit. See Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1160-61 (11th Cir. 1991). The mere proof of an inaccuracy on a credit report is insufficient to impose liability. See Tinsley v. TRW, 879 F. Supp. 550, 552 (D.Md. 1995).
a. Allied Home Mortgage Capital
On or about August 22, 2002, Comeaux applied for a home mortgage loan with Allied Home Mortgage Capital ("Allied"). Allied received Comeaux's Experian credit report through an information reseller, Advantage Credit. See Allied Home Mortgage Capital Corp. 12-10-03 deposition., L. Brown ("L. Brown depo"), Exhibits 4, 4A, 10, pp. 11, 13, 20-21, 25, 32, 36, 61-62; see also Advantage Credit 12-8-03 deposition., J. Bardin("J. Bardin depo."), Exhibits 1-3, pp. 5-8, 11-12, 15-18, 19. According to the L. Brown depo. and the J. Bardin depo., Advantage credit accesses Experian's credit reporting database, inquires about a requested consumer's credit report, and simply resells the Experian credit report to Allied as if it is their own. See J. Bardin depo., Exhibits 1-3, pp. 5-12, 15-20; see also L. Brown depo., Exhibit pp. 13-16, 25, 36.
Larry Brown ("L. Brown"), the branch manager of Allied, and the individual who dealt with Comeaux's loan application, stated that Comeaux's credit report was eight pages long, listed numerous trade accounts, and a Chapter 7 bankruptcy reference. See L. Brown depo., Exhibits 4, 4A, pp. 9-13, 20-22, 25-26, 32, 34-35, 40, 48-49, 107-108. L. Brown, has roughly 35-40 years of lending experience, and it was his testimony that a bankruptcy reference is particularly harmful item if found on an applicant's credit report, because it demonstrates that the applicant lacks the necessary responsibility to maintain a positive credit history, and more importantly, may never obtain a better credit rating. See L. Brown depo., pp. 6-13, 15-22, 26, 40-41. The bankruptcy reference, according to L. Brown, was a "substantial factor" and a cause of Comeaux's credit denial. See Id. at Exhibits 4, 4A, 10, pp. 21-29, 34, 36-38, 40-41, 45-46, 49-50, 53, 63-64, 107-108.
Despite Comeaux's efforts to "mark up" or advise L. Brown of the inaccuracies in her credit report, and that Comeaux's attorneys provided L. Brown with information indicating that her Experian credit file was mixed, L. Brown testified that he was not willing to risk his credibility on submitting Comeaux's application with all the derogatory items, false or not, listed in her credit file. See L.Brown depo., Exhibits 3, 4, 4A, 6, 7, pp. 56-65, 106-108.
L. Brown's deposition testimony clearly creates a genuine issue of material fact as to whether or not Experian's inaccurate credit reporting was the causal link to her credit denial when applying for a mortgage loan. Not only was Comeaux denied a mortgage loan largely due to a false reference of bankruptcy listed on her credit file, but no warning was placed in her Experian credit report that there might be a mixed file problem. Instead, specific notations were made with regard to each false derogatory item as belonging specifically to Comeaux. See L. Brown depo., Exhibits 4, 4A, pp. 25-26, 37.
b. Lowe's Department Store/Monogram Credit Denial
On January 17, 2002, Comeaux was shopping at a Lowe's hardware store when she applied for a Lowe's credit card account in order to purchase various items. See Monogram/GECC deposition, M.Birkhead ("M. Birkhead depo."), Exhibit 3, pp. 7-8; see also Monogram/GECC deposition, S. Cummings ("S. Cummings depo."), Exhibit 3, pp. 12-15; Comeaux's depo., Exhibit 9, pp. 199-205. Lowe's maintains a lending arrangement with Monogram Credit Card Bank of Georgia, which also operates as GE consumer finance, a Division of General Electric Capital Corporation ("Monogram/GECC"), and takes a consumer's credit application and enters it into the automated computer system for Monogram/GECC. See S. Cummings depo., pp. 16-17, 44.
The transmission of Comeaux's credit application accessed only her Experian f/k/a TRW credit report, and listed a Chapter 7 bankruptcy shown as filed and discharged in the U.S. Bankruptcy Court in New Orleans along with other false derogatory information See S. Cummings depo., Exhibits 3-6, pp. 7-12, 17, 44. The result of the Chapter 7 bankruptcy along with additional false derogatory information cause the Monogram/GECC computer system to issue a "hard decline." See M. Birkhead depo., Exhibits 3-6, pp. 7-14; see also S. Cummings depo., Exhibits 3-6, pp. 17, 44-47. The referenced bankruptcy was a "particularly negative factor" on Comeaux's credit report and she was to be denied credit "no matter what" according to Monogram/GECC. See S. Cummings depo., Exhibit 4-6, pp. 17, 44-49; see also WFNNB deposition, R. Sommers, 1-15-04 ("R. Sommers depo."), pp. 17-22, 43-44; see also M. Birkhead depo., Exhibits 4-6, pp. 11-14, 34-37.
There has been some evidence raised by Experian that TRW is not the same entity as Experian, but Comeaux has produced sufficient evidence to create a genuine issue of material fact as to Experian's involvement in reporting significant credit inaccuracies, which according to M. Birkhead, were the "sole factor" in Comeaux's denial of credit at Lowe's hardware store. M. Birkhead depo., Exhibits 4-6, pp. 9-14; see also S. Cummings depo., Exhibits 4-6, pp. 17-18, 39-40, 44-46. Comeaux provided the Court with information that Experian acquired TWR's credit reporting operation in 1996, and while Monogram/GECC's credit report still prints out "TRW," Monogram is aware that it has received and used an Experian credit report. See M. Birkhead depo., Exhibit 5-6, pp. 8-13, 33-35, 37-38; see also S. Cummings depo., Exhibits 5-6, pp. 17-18, 39-40, 44-46. Again no warning was provided to Monogram/GECC with regard to any mixed file problems with in Comeaux's credit file. See M. Birkhead, pp. 34-38. As such, the Court finds that Comeaux has shown that a genuine issue of material fact exists as to whether Experian's inaccurate reporting was the causal link to her credit denial for a Lowe's credit card.
c. World Financial Network National Bank ("WFNNB")
On April 12, 2002, Comeaux was shopping at Express, a women's clothing store, and applied for store credit in order to purchase $150.00 in goods. See R. Sommers depo., Exhibits 1-2, pp. 10-14, 16-20, 22 [$150.0], 23-25 [denied credit]; see also Comeaux depo., Exhibit 7, pp. 216-218. According to deposition testimony, WFNNB has an indirect lending arrangement with Express stores and automatically processes a credit applicant's credit report. See R. Sommers depo., Exhibit 1-2, pp. 1-14, 16-24, 26-29, 43-44. Upon the receipt of Comeaux's credit application, WFNNB accessed her Experian credit report, and after review, denied Comeaux an extension of credit. See Id.
An adverse action letter was sent to Comeaux by WFNN explaining that her credit report listed a bankruptcy, which was the cause of her credit denial. See R. Sommers depo., Exhibit 1, pp. 17-19. Experian asserts that WFNN was aware of other truthful, yet, derogatory information on Comeaux's credit file, and was simply unable to state whether she would have been granted credit had her Experian credit report not contained the listed bankruptcy. See Mackanos deposition, pp. 35, 49, 50.
If WFNN would have been slightly hesitant to grant Comeaux credit without any Chapter 7 bankruptcy reference, then the fact that it was referenced, would have completely destroyed any possibility for Comeaux to have been granted credit at all. Comeaux has produced enough evidence to create a genuine issue of fact as to the listed bankruptcy in her Experian credit report. Furthermore, Comeaux has directed the Court's attention to an adverse action letter written to her by WFNN, which specifically mentions the listed bankruptcy as the cause of her credit denial at the Express clothing store.
Any argument raised by Experian, with regard to any of the above mentioned credit denials that Comeaux was a superceding cause because she did not inform Experian or provide them notice of her mixed file problem in the Spring of 2002 is ignoring the obvious. Not only did Comeaux contact Experian in 1999, but Mrs. Carr contacted Experian in 1997 regarding the same mixed files. Again, Experian, not the consumer, is in the best position to determine the origin of any credit reporting inaccuracies. As such, Experian was placed on ample notice to inquire into Comeaux's file to determine and remove, if necessary, any inaccuracies due to a mixed file problem. Despite Comeaux and Mrs. Carr's contacts in 1999 and 1997, none of the inaccuracies in Comeaux's credit file had yet been removed and no corrective action had been taken prior to Comeaux's 2002 credit denials.
Comeaux has met her burden. She has not only shown that her credit report was fraught with inaccuracies, but that the most harmful inaccuracy, bankruptcy, was either the sole cause or a substantial factor in the declining of her credit. After due consideration, this Court finds that Experian's motion for summary judgment, as to Comeaux's claims for damages related to the credit denials by Allied Home Mortgage Capital, Lowe's Department Store/Monogram Credit, and World Financial National Bank, should be denied.
d. Emotional Distress Damages
Comeaux has also asserted non-pecuniary damages as a result of the "anguish and humiliation upon being denied credit." See Comeaux's Response to Experian's Motion for Summary Judgment, p. 21. The mental distress symptoms expressed by Comeaux are feelings associated with being upset and embarrassed as a result of her negative credit report and the subsequent (often public) denials of credit that follow. See Comeaux depo., pp. 238-239, 246-254.
Generally, evidence of a genuine injury must be present when a party seeks damages for emotional distress. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 1052 (1978). Furthermore, the evidence presented must have "a degree of specificity which may include corroborating testimony or medical or psychological evidence . . ." See Cousins v. Trans Union Corp., 246 F.3d 359, 371 (5th Cir. 2001) [emphasis added]. Evidence showing only that a party felt frustrated, real bad, angry, or irritated is insufficient under Cousins to recover for damages for emotional distress. See Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 938 (5th Cir. 1996); see also Cousins, 246 F.3d at 371.
The Fifth Circuit, has demonstrated that actual damages under the FCRA may include humiliation or mental distress. See Comeaux depo., pp. 238-239, 246-254; see also Fischl v. GMAC, 708 F.2d 143 (5th Cir. 1983). In Stevenson v. TRW, the Court held that the plaintiff had suffered mental anguish from the FCRA violation of the defendant. Specifically, the Court found that the plaintiff's distress was a result of his extensive dealings with the defendant after he disputed his credit report, and that he was denied credit three times. See Stevenson v. TRW Inc., 987 F.2d 288, 296-97 (5th Cir. 1993). As a result, the plaintiff had to continually explain his credit woes and further testified to experiencing considerable embarrassment from having to "detail to business associates and creditors his problems with [the defendant]." Id.
The Fifth Circuit upheld another award of actual damages for similar evidence of mental distress in Pinner. See Pinner v. Schmidt, 805 F.2d 1258, 1265 (5th Cir. 1986), cert. Denied, 483 U.S. 1022, 107 S.Ct. 3267, 97 L.Ed.2d 766 (1987). The plaintiff in Pinner was awarded for mental distress due to humiliation and embarrassment resulting from three credit denials and lengthy dealings with the credit bureau. Id. Furthermore, another plaintiff received damages as a result of humiliation and embarrassment suffered from three denials of credit and from the fact that the credit bureau took several months to correct the credit report's inaccuracies. See Thompson v. San Antonio Retail Merchants Assn., 682 F.2d 509, 513-14 (5th Cir. 1982).
The evidence presented in this case demonstrates that Comeaux also suffered three credit denials and likewise endured a sense of humiliation and embarrassment. She has stated that her personal life has come to a stand still, and that she has been unable to further her standard of living and provide for her child in a manner consistent with her true credit worthiness. See Comeaux depo., pp. 238-239, 246-254. Additionally, she has indicated strong feelings of embarrassment each and every time that she has to discuss her credit problems, whether it be with businesses (when she has to explain her mixed file problem, or being denied credit in public), family members, or even her attorney. The duration for which Comeaux has had to deal with her mixed credit file, since her initial 1999 communications with Experian, has caused her to feel as though her efforts to correct any inaccuracies is now a "losing battle." See Comeaux depo., p. 238.
The detailed events describing each time that Comeaux is denied credit or when she is trying to correct her credit, has provided the Court with sufficient evidence to find that a genuine issue of material fact remains as to her mental distress claims. Comeaux has further provided the Court with enough specificity through her deposition testimony to satisfy Cousins, and further remain consistent with other Fifth Circuit case law as mentioned above. The "evaluation of plaintiff's emotional distress claim is a task best left for the jury[.]" See Kronstedt v. Equifax, 2001 WL 34124783, at 12 (W.D.Wis. Dec. 14, 2001). In consideration of the inferences to be drawn from the evidence presented, and in the light most favorable to the non-moving party, this Court finds that Experian's motion for summary judgment as to Comeaux's emotional distress damages should be denied.
C. Whether or not Comeaux has produced evidence that Experian engaged in willful conduct to harm her.
The third issue raised by Experian is the recovery of punitive damages under the FCRA, and the need for a willful violation to be proved. See Title 15 U.S.C. § 1681n. A credit reporting agency has willfully violated the FCRA when it "knowingly and intentionally commit[s] an act in conscious disregard for the rights of others. See Cousins, 246 F.3d at 372. As discussed above in the Court's analysis of the exception under 15 U.S.C. § 1681p, Experian's conscious actions to (1) place a fraud alert on Comeaux's account, without ascertaining whether, in fact, she was a victim of fraud; (2) by falsely in forming Comeaux that her social security number was not on file or attainable; (3) and most importantly, ignoring any discrepancies and/or inaccuracies (as referenced in Experian depo. R. Holt) is a knowingly and intentional misrepresentation by Experian of the rights afforded to Comeaux.
The FCRA was drafted to "prevent consumers from being unjustly damaged because of inaccurate or arbitrary information in a credit report." See Equifax, Inc. v. Federal Trade Comm'n, 678 F.2d 1047, 1048 [11th Cir. 1982]. Comeaux has met the exception as provided under 15 U.S.C. § 1681p, and has demonstrated a causal link between her professed damages, as referenced in the above discussed credit denials, and Experian's inaccurate reporting. Any willfulness by Experian has been demonstrated through their conscious and intentional disregard for any discrepancies and/or inaccuracies despite being notified by Mrs. Carr in 1997 and Comeaux in 1999; for falsely informing Comeaux that her social security number was not on file or attainable; and by placing a fraud alert on Comeaux's file based solely on a consumer's representation, without ever ascertaining if Comeaux was, in fact, a victim of fraud. After due consideration, this Court finds that a genuine issue of material fact exists as to the willfulness of Experian, and the causal link between Comeaux's alleged damages, and any inaccurate reporting by Experian.
Accordingly, it is
RECOMMENDED that Defendant Experian Information Solutions, Inc.'s Motion for Summary Judgment should be DENIED as to all claims asserted by Plaintiff Cynthia Comeaux (Doc. #41).
A party's failure to file objections to the findings, conclusions, and recommendations contained in this Report within ten days after service with a copy thereof shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).