Coleman v. Experian Information Solutions, Inc.

Full title: Edward COLEMAN, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC.…

Court: United States District Court, N.D. Georgia, Atlanta Division

Date published: Feb 6, 2023

655 F. Supp. 3d 1285 (N.D. Ga. 2023)

Opinion

CIVIL ACTION NO. 1:21-CV-1095-CAP

2023-02-06

Edward COLEMAN, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.

David A. Chami, Pro Hac Vice, The Consumer Justice Law Firm, Scottsdale, AZ, Jenna Dakroub, Price Law Group, APC, Scottsdale, AZ, Bobby Shane Palmer, Robert J. Semrad and Associates, LLC, Atlanta, GA, for Plaintiff. Adam W. Wiers, Pro Hac Vice, Jones Day, Chicago, IL, Callie Barr, Pro Hac Vice, Eric A. Nicholson, Pro Hac Vice, Jones Day, Detroit, MI, Christopher Michael Johnson, Pro Hac Vice, Jones Day, San Diego, CA, Jane Ashley Raborn, Rebecca Marie Nocharli, Jones Day, Atlanta, GA, MacKenzie Salvi, Pro Hac Vice, Barrington, IL, for Defendant.

CHARLES A. PANNELL, JR., United States District Judge

David A. Chami, Pro Hac Vice, The Consumer Justice Law Firm, Scottsdale, AZ, Jenna Dakroub, Price Law Group, APC, Scottsdale, AZ, Bobby Shane Palmer, Robert J. Semrad and Associates, LLC, Atlanta, GA, for Plaintiff.

Adam W. Wiers, Pro Hac Vice, Jones Day, Chicago, IL, Callie Barr, Pro Hac Vice, Eric A. Nicholson, Pro Hac Vice, Jones Day, Detroit, MI, Christopher Michael Johnson, Pro Hac Vice, Jones Day, San Diego, CA, Jane Ashley Raborn, Rebecca Marie Nocharli, Jones Day, Atlanta, GA, MacKenzie Salvi, Pro Hac Vice, Barrington, IL, for Defendant.

ORDER

CHARLES A. PANNELL, JR., United States District Judge

This matter is before the court on the magistrate judge's Final Report and Recommendation ("R & R") [Doc. No. 126] recommending that this court grant summary judgment to the defendant, Experian Information Solutions, Inc. ("Experian" or "the defendant"), pursuant to Experian's motion for the same [Doc. No. 96].^{1 1} The plaintiff has filed objections to the R & R [Doc. No. 128], and Experian has filed a reply to those objections [Doc. No. 129]. The day after Experian replied to the plaintiff's objections, the plaintiff filed a motion for leave to file a surreply [Doc. No. 130], to which Experian objected [Doc. No. 131]. On January 12, 2023, Experian filed a notice of supplemental authority [Doc. No. 132], and on January 16, 2023 the plaintiff filed a motion for leave to file a response to Experian's supplemental briefing [Doc. No. 133]. The court has reviewed all documents filed before it; thus, it GRANTS the plaintiff's motion for leave to file a surreply, which appears to be incorporated within the motion [Doc. No. 130], as well as the plaintiff's motion for leave to file a response to Experian's supplemental motion, which was also apparently incorporated within the motion [Doc. No. 133]. No additional briefing is necessary or permitted on this issue.

1 As addressed herein, the magistrate judge did not find that each of Experian's arguments warranted summary judgment in its favor. However, she ultimately recommended that the court grant summary judgment to Experian on each of the plaintiff's claims.

1 For purposes of this Report and Recommendation, unless otherwise indicated, citations to the record are made to the CM/ECF heading at the top of the page cited; citations to deposition pages are to the CM/ECF docket entry, but the actual page number of the hardcopy deposition transcript.

This matter, which is more-than-fully briefed, is now ripe for review.

I. Applicable Legal Standards

A. Legal Standard for Reviewing a Report and Recommendation

To challenge the findings and recommendations of the magistrate judge, a party must file with the clerk of court written objections which "shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis of the objection." Heath v. Jones, 863 F.2d 815, 822 (11th Cir. 1989). If timely and proper objections are filed, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). The court "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).

B. Legal Standard for Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it is "a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

The moving party bears the initial burden of showing, by reference to materials in the record, that there is no genuine dispute as to any material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party's burden can be discharged either by showing an absence of evidence to support an essential element of the nonmoving party's case or by showing that the nonmoving party will be unable to prove the case at trial. Celotex, 477 U.S. at 325, 106 S.Ct. 2548; Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). In determining whether the moving party has met this burden, the court must consider the facts in the light most favorable to the nonmoving party. See Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005).

Once the moving party has adequately supported its motion, the non-movant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no "genuine [dispute] for trial" when the record as a whole could not lead a rational trier of fact to find for the non-moving party. Id. All reasonable doubts, however, are resolved in the favor of the nonmoving party. Fitzpatrick, 2 F.3d at 1115. In addition, the court must "avoid weighing conflicting evidence or making credibility determinations." Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000).

II. Overview of the Case

A. The Plaintiff's Claims

The plaintiff alleges that Experian negligently and/or willfully violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681e(b), by misreporting a debt that the plaintiff incurred with First Franklin Financial ("First Franklin").^{2 2} See generally Compl. [Doc. No. 1]. The plaintiff contends that, although the debt was discharged in bankruptcy, Experian inaccurately reported it as open with a balance of $1,336. Id. ¶ 45. He claims that the defendant's reporting error caused him damages, "including credit harm, loss of credit opportunity, credit denials, and other financial harm" as well as "interference with daily activities [and] emotional distress, including, without limitation, emotional and mental anguish, humiliation, stress, anger, frustration, shock, embarrassment, and anxiety." Id. ¶ 57. He further alleges that he was denied an automobile loan by several creditors due to the defendant's "inaccurate reporting which was published to the creditors in their review of [his] application." Id. ¶ 58. The plaintiff seeks actual, statutory, and punitive damages as well as costs and reasonable attorneys' fees. Id. at 17-18. B. Undisputed Facts for Purposes of Summary Judgment

2 Originally, the plaintiff filed this lawsuit against Experian and Trans Union LLC. The plaintiff filed a notice of voluntary dismissal with prejudice regarding Trans Union LLC on July 30, 2021 [Doc. No. 22].

2 Plaintiff testified in his deposition, however, that as of September 2021, he still had not undergone the dental procedure because it cost more than he had anticipated. He used the money instead to pay other bills. [Doc. 96-2, Deposition of Edward Coleman ("Coleman Dep.") at 29]. Plaintiff testified that he listed "a few TVs" as collateral in order to secure the First Franklin loan. [Id.].

1. Introduction

In the R & R on this matter, the magistrate judge set forth a lengthy and descriptive statement of facts. The plaintiff has not disputed the majority of these facts; thus, they are recited below with citations omitted. The court has removed an excerpt regarding the plaintiff's deposition testimony and will review that testimony in its analysis of the plaintiff's claim for emotional distress damages.

2. Facts

On December 31, 2019, the plaintiff took out a cash loan in the amount of $1,596 with First Franklin so that he could pay for a dental procedure.^{3 3} On January 6, 2020, six days after incurring the debt to First Franklin, the plaintiff filed a petition for Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the Northern District of Georgia and signed sworn statements that his schedule of liabilities and list of creditors were true and correct. The plaintiff, however, failed to list the First Franklin debt on his bankruptcy petition or schedule of liabilities, and never sought to amend his bankruptcy petition or schedules to add First Franklin as a creditor to his bankruptcy. Because First Franklin was not listed on the plaintiff's petition as a creditor, the bankruptcy court did not provide First Franklin with notice of the plaintiff's bankruptcy. The plaintiff testified in his deposition that he was not sure why First Franklin was not listed as a creditor, but the omission was not intentional.^{4 4}

3 The plaintiff testified in his deposition, however, that as of September 2021, he still had not undergone the dental procedure because it cost more than he had anticipated. He used the money instead to pay other bills. The plaintiff testified that he listed "a few TVs" as collateral in order to secure the First Franklin loan.

3 Plaintiff testified that after he filed for bankruptcy, he tried to make a payment to First Franklin, but the lady he spoke to told him he couldn't make any more payments because he had filed for Chapter 7 bankruptcy. [Coleman Dep. at 32-33, 36-38].

4 The plaintiff testified that after he filed for bankruptcy, he tried to make a payment to First Franklin, but the lady he spoke to told him he couldn't make any more payments because he had filed for Chapter bankruptcy.

4 The credit report dated December 4, 2020 provided by Plaintiff to support his response to Experian's motion for summary judgment has a different format than the one produced by Experian; Plaintiff's identifies the status of his First Franklin account as "Open/Never late" and "Current on payments" as of December 2019, but it does not mention whether the account is or is not "in good standing." [Doc. 103-1 at 6-7 (sealed)]. Unlike the First Franklin account in Plaintiff's version of the credit report, however, the accounts listed as having been "Discharged through Bankruptcy Chapter 7" are marked "Potentially Negative" in red letters. [Id. at 7-13]. The entry for First Franklin does not contain that indicator, from which one could reasonably infer that the account was showing as in good standing or at least not derogatory or delinquent on the December 4, 2020 credit report (file disclosure).

Experian's internal records indicate that First Franklin first reported the plaintiff's debt to Experian on February 19, 2020. At that time, First Franklin reported to Experian that the plaintiff's account was opened on December 31, 2019; the account condition was "open"; the account status was "current"; there was no history of any late payments; and the balance was $1,336 as of December 2019.

On April 13, 2020, the bankruptcy court entered a discharge order in the plaintiff's bankruptcy. Experian received notice of the plaintiff's bankruptcy discharge from its public-records vendor, LexisNexis Risk Data Management, on the same day the bankruptcy court entered the Discharge Order.

Upon notice that a consumer has received a discharge in a Chapter 7 bankruptcy proceeding, Experian applies an automated "scrub" procedure to that consumer's credit files. The scrub process evaluates the debts in a consumer's credit file, identifies pre-bankruptcy debts Experian considers most likely to have been discharged in the consumer's bankruptcy, and causes those debts to report as discharged in bankruptcy and with a zero ($0) balance by applying an industry-standard code known as a Consumer Information Indicator with a value of "E."

Experian developed its bankruptcy scrub in order to implement the procedures it had agreed to pursuant to a class action settlement agreement and order issued by the United States District Court for the Central District of California in White v. Experian Information Solutions,

Inc., No. SA CV 05-1070 DOC (MLGx) (Lead Case) and related cases (including No. 05-cv-1073, 2008 WL 11518799 (C.D. Cal.) Aug. 19, 2008) (hereinafter "the White Order"). The action asserted claims on behalf of a putative nationwide class of consumers relating to each of the defendants' (including Experian's) procedures for reporting pre-bankruptcy debts of consumers who have obtained discharges through Chapter 7 bankruptcy proceedings. White, 2008 WL 11518799, at *1.

The White Order provides, in pertinent part, that Experian (and the other defendant credit reporting agencies ["CRAs"]), shall "assume that certain categories of pre-bankruptcy consumer debts have been discharged in Chapter 7 bankruptcies based on the statistical likelihood of discharge of these categories of debt, and without either the affected creditors or Consumers reporting the debt to Defendants as having been discharged." White, 2008 WL 11518799, at *13, ¶ 5.1. According to Experian, the White Order required its scrub to exclude debts last reported with a "Current Status," which the Order defined as "an account status or rating indicating that, as of the date of last reporting, there is no outstanding, overdue, and delinquent balance currently due." Id. at **5, 10 ¶¶ 2.10, 3.2(b)(ii)(E). An outstanding balance on an account, alone, is not a factor in the scrub to determine whether the account was to be considered for being reported as included in bankruptcy. If a creditor independently informs Experian that a debt was discharged in bankruptcy, Experian will update the consumer's file to reflect a $0 balance and the discharge. Here, First Franklin did not update its reporting of the plaintiff's account after February 19, 2020, and it did not add any bankruptcy indicators to its tradeline that would have informed Experian that the debt was included in bankruptcy.

On April 20, 2022, Experian applied its bankruptcy scrub procedure to the plaintiff's credit file and updated multiple pre-bankruptcy debts to report as discharged in bankruptcy and with a $0 balance. Experian's scrub excluded the plaintiff's First Franklin account because it was reporting with an account status of "open/never late" and "current." Experian therefore did not report that the account had a $0 balance or that it had been discharged in bankruptcy. It is undisputed that Experian does not look at bankruptcy dockets when determining whether to report an account as included in bankruptcy.

Experian continued to monitor the plaintiff's credit file following his bankruptcy through a secondary "look-back" scrub that updated pre-bankruptcy debts that did not qualify for its initial scrub or that were later added to the consumer's credit file. The secondary scrub evaluates a consumer's credit file for 18 months following a consumer's bankruptcy discharge. According to Experian, its secondary scrub did not update the plaintiff's First Franklin account because First Franklin never reported that the plaintiff's debt was anything other than open and current.

In fact, other than its initial report in February 2020 that the plaintiff's account was "open" and "current" with a balance of $1,336, First Franklin never updated its tradeline. Where, as with the plaintiff's First Franklin account, a furnisher stops updating an open account with a balance amount greater than zero in Experian's files for more than 90 days, Experian describes those tradelines as "stale accounts," meaning accounts that are "not as current or as up-to-date as ... we would ideally like."

Experian provides what are called metric reports on a monthly basis to data furnishers like First Franklin to help them "evaluate the data that they're sending and look for any type of errors and help

them be in better compliance [and] make corrections as needed to their reporting." The reports provide notice of reporting errors and anomalies. One such anomaly occurs when a furnisher stops updating an account in Experian's files. Experian's 30(b)(6) witness testified that Experian, however, will not take any action on stale accounts that Experian considers to not be "negative"—i.e., there is no history of missed payments or collections. She testified further that Coleman's First Franklin account did not appear to be "negative."

On July 20, 2020 and again on December 4, 2020, in response to the plaintiff's requests, Experian provided the plaintiff with a copy of his credit file (also known as "consumer disclosures" or "file disclosure"). Experian provides consumer disclosures only to the consumer himself and does not share them with third parties. The First Franklin account was one of only two debts reporting in good standing on the plaintiff's July 2020 file disclosure and was the only debt reporting in good standing on his December 4, 2020 file disclosure. On each, the First Franklin account was listed in the area of the report titled, "Your accounts in good standing," and the account was reporting with the status of "Open/Never late" and a recent balance of "$1,336 as of Dec[.] 2019."^{5 5} By contrast, in December 2020, nonparty Equifax reported the First Franklin account as closed with a $0 balance owing.^{6 6}

5 The credit report dated December 4, 2020 provided by the plaintiff to support his response to Experian's motion for summary judgment has a different format than the one produced by Experian; the plaintiff's identifies the status of his First Franklin account as "Open/Never late" and "Current on payments" as of December 2019, but it does not mention whether the account is or is not "in good standing." Unlike the First Franklin account in the plaintiff's version of the credit report, however, the accounts listed as having been "Discharged through Bankruptcy Chapter 7" are marked "Potentially Negative" in red letters. The entry for First Franklin does not contain that indicator.

5 It is interesting to note, however, that the Credit Karma report for Equifax that Plaintiff has filed to support his opposition also fails to list the First Franklin account as being included in Chapter 7 bankruptcy or "Bankruptcy discharged" like some of the other accounts listed in the same Credit Karma Equifax credit report. [Doc. 103-3 (sealed), Ex. 8, at 10-11, COLEMAN000139-140].

6 It is interesting to note, however, that the Credit Karma report for Equifax that the plaintiff has filed to support his opposition also fails to list the First Franklin account as being included in Chapter 7 bankruptcy or "Bankruptcy discharged" like some of the other accounts listed in the same Credit Karma Equifax credit report.

6 "The FCRA expressly requires CRAs, upon request by a consumer, to identify each person or entity (i.e., user) that procured a consumer report on that individual ... during the 1-year period preceding the date on which the request was made. 15 U.S.C. § 1681g(a)(3)(A)(i)-(ii). An 'inquiry' is a factual record of when a consumer's credit file was accessed by a user and the user received information about a particular consumer." Steed v. Equifax Info. Servs., LLC, No. 1:14-cv-00437-SCJ-CMS, 2016 WL 7888040, at *3 (N.D. Ga. July 15, 2016). "A 'hard' inquiry indicates that a user accessed the consumer's report for the purpose of making a credit decision. Such access is normally initiated in response to a consumer seeking credit, such as a mortgage, credit card, auto loan, or personal finance loan. ... [H]ard inquiries in [credit reports] ... let potential creditors know where the consumer has sought credit, when, and with whom. ... Hard inquiries are generally considered in credit score development and are often a factor in a consumer's credit score." Id. "Hard inquiries can lower a consumer's credit score and be used as a basis for a denial of credit." Id. at *4.

On December 2, 2020, the plaintiff and his wife jointly applied for an auto loan with Ally Financial ("Ally"). Ally made a "hard inquiry" into the plaintiff's Experian credit file in connection with that application.^{7 7} Experian has submitted a declaration, under penalty of perjury, of Kelly Maynard, Senior Director for Ally, in support of its motion for summary judgment. In the declaration, Maynard avers that the report provided to Ally in response

7 "The FCRA expressly requires CRAs, upon request by a consumer, to identify each person or entity (i.e., user) that procured a consumer report on that individual ... during the 1-year period preceding the date on which the request was made. 15 U.S.C. § 1681g(a)(3)(A)(i)-(ii). An 'inquiry' is a factual record of when a consumer's credit file was accessed by a user and the user received information about a particular consumer." Steed v. Equifax Info. Servs., LLC, No. 1:14-cv-00437-SCJ-CMS, 2016 WL 7888040, at *3 (N.D. Ga. July 15, 2016).

A 'hard' inquiry indicates that a user accessed the consumer's report for the purpose of making a credit decision. Such access is normally initiated in response to a consumer seeking credit, such as a mortgage, credit card, auto loan, or personal finance loan.... [H]ard inquiries in [credit reports] ... let potential creditors know where the consumer has sought credit, when, and with whom.... Hard inquiries are generally considered in credit score development and are often a factor in a consumer's credit score.

Id. "Hard inquiries can lower a consumer's credit score and be used as a basis for a denial of credit." Id. at *4.

7 Although Plaintiff's counsel acknowledged during his deposition that they had received copies of the credit denial letters and would produce them, the only credit denial letter the Court has located in the record was a May 2021 letter from Chase, and that was filed under seal by Experian, not Plaintiff. [Doc. 97-1 at 2, Ex. O; Coleman Dep. at 94]. That letter made no mention of Experian providing any information concerning Plaintiff's First Franklin account, positive or negative.

to its hard inquiry originated from an Experian affiliate, Clarity, and did not include any information about the plaintiff's First Franklin account. Id. The plaintiff has not disputed this fact.

Ally also obtained information about the plaintiff from two other consumer reporting agencies, TransUnion and SafeStream, in connection with the plaintiff's auto loan credit application. TransUnion's credit report included tradeline detail and reported the plaintiff's First Franklin account as in good standing and open/never late. According to Maynard, "A tradeline reporting in good standing like Mr. Coleman's 1st Franklin Financial Account would not be a factor that would cause someone to be denied credit by Ally when applying for a car loan." After reviewing the application and considering the information Ally obtained regarding the co-applicants, including the information provided by Experian, Ally was not agreeable to handling the proposed transaction, and sent the plaintiff a denial letter on December 16, 2020, informing him that it was denying his application based on the following key factors: "a) Insufficient number or no open accounts recently reported; b) [A] non-traditional credit inquiry at Clarity too recently; c) [T]oo high a total number of inquiries; and d) Lack of sufficient relevant bankcard or revolving account information." According to Maynard, the First Franklin account was not provided as a reason for, and had no bearing on, Ally's decision not to handle the proposed transaction. Again, the plaintiff has not disputed this evidence.

As reflected on the December 4, 2020 credit report provided by the plaintiff, there were ten hard inquiries to Experian after his bankruptcy discharge, indicating that following the plaintiff's bankruptcy discharge, the plaintiff applied for credit or sought financing from ten different entities, including Ally. The plaintiff testified that he was denied credit by each of those potential creditors, but he is "not sure" and does not know if the reason any of them provided for denying him credit was because of the First Franklin account. As with the Experian consumer disclosures, the plaintiff testified that he did not review the denial letters, other than to see that they were credit denial letters; he just forwarded them to his lawyers.^{8 8} When asked during his deposition if it was correct that he sued both Experian and TransUnion about the reporting of his First Franklin account, he replied, "My lawyer sued them. I didn't sue no one. My lawyer sued them. I'm not an expert."

8 Although the plaintiff's counsel acknowledged during his deposition that they had received copies of the credit denial letters and would produce them, the only credit denial letter the court has located in the record was a May 2021 letter from Chase, and that was filed under seal by Experian, not the plaintiff.

8 This lack of admissible evidence is consistent with Plaintiff's answers to Experian's Request for Admission No. 5 (and Interrogatory No. 24): "Plaintiff has been denied credit opportunities. The creditor did not explicitly state which credit reporting agency was used in determining whether to approve Plaintiff's application. Upon information and belief, Plaintiff was denied credit as a result of Experian's inaccurate reporting." [Doc. 96-13 at 22 (emphasis added)].

Experian does not store copies of the credit reports or information sent to third-party subscribers and does not maintain a permanent record of what information it provides to subscribers who make a hard inquiry. The information provided depends on what information the subscriber requests and may include a full report with account-level detail or may include more limited information, such as a credit score. Experian does not have a record of the information it provided to Ally. And the plaintiff has provided no evidence as to what, if any, information concerning his First Franklin account was provided to any of the entities who made hard inquiries into his Experian credit file. In fact, the plaintiff has provided no evidence to determine which credit reporting agency's information was used in determining whether to approve his credit applications.^{9 9} C. Experian's Summary Judgment Motion

9 This lack of admissible evidence is consistent with the plaintiff's answers to Experian's Request for Admission No. 5 (and Interrogatory No. 24): "Plaintiff has been denied credit opportunities. The creditor did not explicitly state which credit reporting agency was used in determining whether to approve Plaintiff's application. Upon information and belief, Plaintiff was denied credit as a result of Experian's inaccurate reporting."

9 A federal court in Illinois recently rejected the same argument Experian makes here: "[T]he Court rejects Experian's argument that updating discharged accounts requires a legal determination that CRAs are not obligated to make. ... This is not a case where Experian need resolve complex legal issues. Experian can reasonably apply a Chapter 7 bankruptcy discharge order to a consumer's credit file, as evidenced by the comprehensive White Order." Laura v. Experian Info. Sols., Inc., No. 20-cv-01573, 2022 WL 823853, at *3 (N.D. Ill. Mar. 18, 2022) (citing Chuluunbat). The Eleventh Circuit also recently rejected a similar argument in Losch v. Nationstar Mortgage LLC, 995 F.3d 937, 946 (11th Cir. 2021) ("The bankruptcy court's discharge was unclear, but there is no doubt that Losch's mortgage was discharged. Thus, this case doesn't involve a legal dispute about the validity of the underlying debt."). See also Benjamin, 561 F. Supp. 3d at 1360 ("there is nothing particularly complicated about the effect of a Chapter 7 bankruptcy. Experian's own procedures already recognize the consequences of a general discharge in Chapter 7 bankruptcy.").

Experian moved for summary judgment [Doc. No. 96], arguing that the plaintiff's claims fail as a matter of law because: (1) the plaintiff cannot prove or establish that the information it reported about the First Franklin debt to any third party was inaccurate because his debt was not discharged in bankruptcy; (2) determining whether the First Franklin debt would be discharged in bankruptcy is a legal question for resolution by the bankruptcy court, not Experian; (3) the plaintiff failed to come forward with any evidence from which a reasonable jury could find causation and damages; and (4) there is no evidence that Experian violated § 1681e(b), much less negligently and willfully. See Experian's Summ. J. Br. at 3 [Doc. No. 96]; R & R at 20 [Doc. No. 116].

D. The R & R's Analysis

1. The Accuracy of the First Franklin Debt

Experian argued on summary judgment that the First Franklin debt was excluded from the plaintiff's bankruptcy discharge because the plaintiff omitted it from his bankruptcy schedule and never attempted to correct the omission. See R & R at 21 [Doc. No. 96]. Thus, it contended that the information it reported regarding the debt was accurate. Id. at 20. The plaintiff, on the other hand, contended that pursuant to bankruptcy law, all of a no-asset Chapter 7 debtor's pre-petition debts are discharged, including unlisted and unscheduled debts. Id. at 23.

The magistrate judge recommended that the court decline to grant summary judgment to Experian on this issue. Id. at 24-25. The magistrate judge stated that the parties argued that a circuit and intra-circuit split exist in regard to whether prebankruptcy debts like the plaintiff's First Franklin secured loan that are neither listed nor scheduled in the plaintiff's bankruptcy papers are discharged in bankruptcy. Id. at 21-24. However, the magistrate judge ultimately found the plaintiff's legal authority more persuasive and concluded that bankruptcy law operated to discharge his First Franklin debt. Id. at 24. In reaching this conclusion, the magistrate judge noted that there "is no probative evidence that Plaintiff fraudulently, intentionally, and/or in bad faith purposefully failed to include his First Franklin debt in his bankruptcy papers, or formally sought to reaffirm his debt to First Franklin." Id.

2. Legal Dispute Versus Factual Question

Experian also argued that whether the debt was discharged was a legal question that neither the courts nor the FCRA required Experian to determine. Id. at 21-22. Although the magistrate judge did not directly address this argument, she noted in a footnote that other courts have rejected the same or similar arguments, including the Eleventh Circuit, as follows:

A federal court in Illinois recently rejected the same argument Experian makes here: "[T]he Court rejects Experian's argument that updating discharged accounts requires a legal determination that CRAs are not obligated to make. ... This is not a case where Experian need resolve complex legal issues. Experian can reasonably apply a Chapter 7 bankruptcy discharge order to a consumer's credit file, as evidenced by the comprehensive White Order." Laura v. Experian Info. Sols., Inc., No. 20-cv-01573,

2022 WL 823853, at *3 (N.D. Ill. Mar. 18, 2022) (citing Chuluunbat). The Eleventh Circuit also recently rejected a similar argument in Losch v. Nationstar Mortgage LLC, 995 F.3d 937, 946 (11th Cir. 2021) ("The bankruptcy court's discharge was unclear, but there is no doubt that Losch's mortgage was discharged. Thus, this case doesn't involve a legal dispute about the validity of the underlying debt."). See also Benjamin [v. Experian Info. Sols., 561 F. Supp. 3d 1330, 1360 (N.D. Ga. 2021)] ("There is nothing particularly complicated about the effect of a Chapter 7 bankruptcy. Experian's own procedures already recognize the consequences of a general discharge in Chapter 7 bankruptcy.").

Id. at 22 n.9.

3. Evidence Regarding Causation and Damages

The magistrate judge recommended that the court grant summary judgment to Experian on the plaintiff's claim for negligent violation of § 1681e(b) because she found he had failed to produce "sufficient (or any) evidence of a causal connection and actual damage ..." Id. at 40. First, the magistrate judge found that the plaintiff had not provided evidence that connected his credit "denials to Experian's reporting of the First Franklin account as 'open/never late,' and with a $1,336 balance." Id. at 25. The magistrate judge stated that the only relevant credit reports that the plaintiff had specifically identified were those that the plaintiff or his counsel requested from Experian. Id. at 26. Because he provided no evidence of what Experian provided to any of the entities that denied him credit, the magistrate judge reasoned that he could not show that Experian's reporting adversely affected a third-party creditor or potential creditor's decision. Id. at 26. Moreover, even if Experian did publish the inaccurate information, the magistrate judge concluded that the plaintiff had not put forth any evidence that "Experian's publication caused Plaintiff to suffer the credit harm he alleges." Id. at 27. "In other words," the magistrate judge continued, the "[p]laintiff has failed to connect the dots between any alleged erroneous or inaccurate reporting by Experian and his credit denials." Id. In her analysis, the magistrate judge specifically discussed a credit denial letter from Chase and the denial of a car loan with Ally and found that the evidence did not support (in the case of Chase) or specifically refuted (in the case of Ally) the plaintiff's claim that Experian's inaccurate reporting caused his credit harm in regard to those entities. Id. at 27-34.

Moreover, the magistrate judge concluded that the plaintiff has "failed to come forward with sufficient evidence from which a jury could find that Experian's reporting caused him any other damages," such as those related to emotional distress. Id. at 35. The magistrate judge cited to portions of the plaintiff's deposition in which he stated that his decision to file bankruptcy caused him emotional distress. Id. In addition, the magistrate judge cited to the plaintiff's following deposition testimony, in which "[h]e also testified to being distressed by his inability to secure credit following bankruptcy:"

Emotional distress, meaning I can't get credit. I lost my wife and my children behind it. Trying to get a house and can't get credit every time I try to apply for something. And being embarrassed going into store, try to apply for credit and telling me I can't be accepted for credit.

Id. at 35 -- 36 (citing Pl.'s Dep. at 65 [Doc. No. 102-4]). She further cited to his deposition testimony that he would not file for bankruptcy if he had to do it all over again and that he did not understand that difficulty in obtaining credit was going to be a

consequence of filing bankruptcy. Id. at 36 (citing Pl.'s Dep. at 90, 97-99 [Doc. No. 102-4]). She then contrasted this to the plaintiff's deposition testimony about his First Franklin account and concluded that while the plaintiff's deposition testimony showed that "being behind on his debts and filing for bankruptcy were what caused him emotional distress, to lose sleep, feel anxious, depressed, and embarrassed" and made it difficult for him to obtain credit, "he had little or nothing to say about how the First Franklin account affect[ed] him." Id. at 36-37; 39-40. Accordingly, she determined that he had failed to support his claim for emotional distress with any competent evidence of record. Id. at 40. In so finding, the magistrate judge disregarded an undated declaration attesting to his emotional distress that she found was contrary to his deposition testimony. Id. at 37-40.

4. The Willful Violation Claim

Finally, the magistrate judge agreed with Experian that the plaintiff had not put forth any evidence that Experian willfully violated 15 U.S.C. § 1681e(b). Id. at 41-46. The plaintiff argued that Experian: (1) knew that the plaintiff's debts were discharged in bankruptcy, and (2) was involved in multiple lawsuits challenging the same procedures it employed here, so its behavior in continuing those procedures constituted actionable recklessness. Id. at 42. Experian, on the other hand, argued that its procedures were in compliance with the White Order and, as such, were not willful. Id. at 42-44.

In determining that Experian was entitled to summary judgment on this issue, the magistrate judge agreed with Judge Story in Benjamin v. Experian Info. Sols., 561 F. Supp. 3d 1330, 1343-44 (N.D. Ga. 2021), that Experian's reliance on procedures set forth in White, though not binding, effectively foreclosed a claim that Experian recklessly or knowingly violated the law. Id. at 45-46.

E. Objections to the R & R

1. The Plaintiff's Objections

In his objection [Doc. No. 128], the plaintiff argues that the magistrate judge erred:

(1) by concluding that the plaintiff failed to demonstrate that Experian published the inaccurate information to a third party;

(2) by concluding that Experian's published inaccuracies did not cause any of the plaintiff's credit denials;

(3) by concluding that the plaintiff's evidence of emotional distress was insufficient; and

(4) by concluding that Experian's compliance with the White Order was sufficient to establish on summary judgment that its FCRA violation was not willful.

2. Experian's Objection

Experian did not file a timely objection to the R & R. However, in response to the plaintiff's objections, it reiterates its summary judgment argument that the reported First Franklin debt was accurate because the debt was not discharged (and contends that the magistrate judge erred in finding otherwise). Experian's Resp. at 12 [Doc. No. 129]. In addition, Experian argues (once again) that any inaccuracy reflects a legal inaccuracy not a factual inaccuracy actionable under the FCRA. Id. at 12-13.

III. Analysis of Objections

A. Governing Law

"The purpose of the FCRA is to make sure 'that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit [...] and other information in a

manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information.'" Berry v. Equifax Info. Servs. LLC, No. 4:18-CV-356-KOB, 2020 WL 1345410 at *4, 2020 U.S. Dist. LEXIS 49620 at *10 (N.D. Ala. Mar. 23, 2020) (citing U.S.C. § 1681(b)). It "creates a private right of action against consumer reporting agencies for the negligent, see 15 U.S.C. § 1681o, or willful, see 15 U.S.C. § 1681n, violation of any duty imposed under the statute." Id. (citing Collins v. Experian Info. Sols., Inc., 775 F.3d 1330, 1333 (11th Cir.), on reh'g sub nom. Collins v. Equable Ascent Fin., LLC, 781 F.3d 1270 (11th Cir. 2015)).

Section 1681e(b) of Title 15 states that "'[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual to whom the report relates." 15 U.S.C. § 1681e(b). "To establish a prima facie violation of § 1681e(b), a consumer must present evidence that a credit reporting agency's report was inaccurate." Jackson v. Equifax Information Servs., 167 F. App'x 144, 146 (11th Cir. 2006) (citing Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir. 1991)). However, "[t]he FCRA ... does not make reporting agencies strictly liable for all inaccuracies." Id. If an inaccurate report was generated following reasonable procedures, which is generally a jury question, it can escape liability. Id. Prior to sending a § 1681e(b) claim to the jury, "a credit reporting agency can usually prevail only if a court finds, as a matter of law, that a credit report was 'accurate.'" Cahlin, 936 F.2d at 1156. "[T]here is no requirement that a customer file a dispute with a [credit reporting agency] before bringing a claim against the [credit reporting agency] for a violation of § 1681e(b)." Benjamin, 561 F. Supp. 3d at 1339 (citing cases).

As set forth above, a plaintiff can establish civil liability pursuant to the FCRA through a negligent violation or a willful violation. See Celestine v. Capital One, 741 F. App'x 712, 715 (11th Cir. 2018). In this case, the plaintiff has alleged both.

The courts in this district have summarized the elements of a negligent noncompliance claim under § 1681e(b) as follows:

(1) inaccurate information was included in a consumer's credit report; (2) the inaccuracy was due to defendant's failure to follow reasonable procedures to assure maximum possible accuracy; (3) the consumer suffered injury; and (4) the consumer's injury was caused by the inclusion of the inaccurate entry.

Enwonwu v. Trans Union, LLC, 364 F. Supp. 2d 1361, 1365 (N.D. Ga. 2005) (citations omitted); see also Losch v. Nationstar Mortg., LLC, 995 F.3d 937, 944 (11th Cir. 2021) ("To state a claim under § 1681e, the plaintiff must show that the agency's report contained factually inaccurate information, that the procedures it took in preparing and distributing the report weren't 'reasonable,' and that damages followed as a result.")

A willful violation of the FCRA, on the other hand:

requires proof that a consumer reporting agency either knowingly or recklessly violated the requirements of the Act. A reckless violation of the FCRA requires the consumer to establish that the agency's action is not only a violation under a reasonable reading of the statute's terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.

Celestine, 741 F. App'x at 715 (citations and internal punctuation omitted).

The court will address the governing law in more detail below. B. Analysis of Arguments

1. The Status of the First Franklin Account

As noted above, Experian argued in response to the plaintiff's objections that it is entitled to summary judgment because the reported First Franklin debt was not discharged in bankruptcy, rendering Experian's reporting of the same accurate. As Experian itself recognizes in its response opposing the plaintiff's request for leave to file a sur-reply, the plaintiff's failure to schedule his First Franklin debt in bankruptcy and its alleged impact on the accuracy of Experian's reporting regarding that debt was "briefed extensively below and addressed in the R & R." Experian's Resp. Opposing Sur-Reply at 2 [Doc. No. 131]. Despite its apparent disagreement with the magistrate judge's recommendation, Experian did not timely and properly object to this (or any) aspect of the R & R. Accordingly, the court finds that Experian has waived its right to object and overrules Experian's objection on this ground alone.

However, even if Experian's arguments were properly raised, the court would not find merit in them. As Judge Story held recently, "[w]hen a Chapter 7 debtor receives a discharge, she is discharged from all debts and 'any liability on a claim' that arose, or are determined to arise, before the bankruptcy is filed." Benjamin, 561 F. Supp. 3d at 1340 (N.D. Ga. 2021) (citing Medley v. Dish Network, LLC, 958 F.3d 1063, 1067 (11th Cir. 2020)). Although Experian makes much of the Eleventh Circuit's opinion In re Baitcher, 781 F.2d 1529 (11th Cir. 1986) and claims that it stands for the proposition that a "debtor can obtain a discharge of an unscheduled debt only by amending his bankruptcy schedules to add the debt, which requires him to 'demonstrate absence of fraud or intentional design' in the initial omission," Def.'s Resp. Br. at 12 [Doc. No. 129], this court finds Baitcher inapplicable here. In Baitcher, the Eleventh Circuit considered the dischargeability of an unscheduled debt contested by the individual to whom the debt was owed. In this case, there is no indication that First Franklin has in any way contested the dischargeability of the debt and—in fact—the facts set forth in the R & R (to which neither party has objected) suggest that First Franklin accepted the discharge. As the magistrate judge set forth, this case is simply not a case in which fraud or intentional omission are at issue.

In the absence of the specter of fraud, the question before the court is simply whether the debt was discharged in bankruptcy. If it was not, then Experian claims it is entitled to summary judgment. Unfortunately for Experian, the magistrate judge found that the debt was discharged, a position with which this court agrees based on the authority set forth in the R & R. See R & R at 23-24 [Doc. No. 126]. Moreover, the court is not compelled by Experian's arguments that the inaccuracy in the plaintiff's credit report reflects a disputed legal question. In this case, First Franklin has not disputed the discharge. Thus, there does not appear to be any dispute at all regarding whether the debt was discharged.^{10 10} Id. at 22 n.9. Accordingly, the court overrules any such objections on Experian's behalf.¹¹ Because the court agrees with the R & R that the First Franklin debt was discharged in bankruptcy, any reporting suggesting the debt was still viable was inaccurate. As such, Experian is not entitled to summary judgment on this issue.¹²

10 Obviously, Experian disputes whether the debt was discharged in bankruptcy; however, it is not clear to the court how or why Experian would have standing to challenge the dischargeability of the plaintiff's debt with First Franklin. Experian clearly has an interest in asserting a dispute exists for purposes of this lawsuit, but nothing currently before this court suggests that there is any validity to these arguments.

10 Plaintiff complains that Experian has not addressed the nine-plus other creditors besides Ally to whom Experian allegedly published inaccurate information. But it is Plaintiff's burden to point to evidence that supports his claim; not Experian's. See Enwonwu, 364 F. Supp. 2d at 1365 ("the burden of proving causation remains with the Plaintiff at all times and never shifts to the Defendant").

11 On January 12, 2023, Experian notified the court pursuant to a notice of supplemental authority [Doc. No. 132] of a Second Circuit ruling in Mader v. Experian Info. Sols., Inc., 56 F.4th 264 (2nd Cir. 2023). Nothing in Mader, a case involving Experian's reporting of a private education debt that both the creditor and the debtor treated as outstanding following a bankruptcy, alters this court's analysis.

12 The court must clarify one statement set forth in the R & R. The R & R states:

Viewing the facts in the light most favorable to Coleman, the non-movant, a reasonable juror could conclude that (1) when Plaintiff received a discharge in April 2022 in his no-asset Chapter 7 bankruptcy, his unlisted secured debt to First Franklin was discharged by operation of law; and (2) after Plaintiff received his bankruptcy discharge, it was no longer accurate for Experian to report that the First Franklin account was "open" or that it had a $1,336 balance.

Id. at 24-25. In this case, there does not appear to be a question of fact or authentic dispute as to whether the debt was discharged; accordingly, there does not appear to be an issue for the jury to resolve here. If Experian believes there is a question of fact on this issue that has not been briefed for the court, it may so address it in the pretrial order. However, this is not an invitation to rehash arguments adjudicated in this order.

2. Third-Party Publication

The plaintiff contends that the R & R erred as a matter of law in concluding that he failed to provide evidence that Experian published inaccurate reporting of the First Franklin account to nine creditors who made hard inquiries into his account.¹³ Pl.'s Objs. at 5 [Doc. No. 128]. The plaintiff contends that evidence of multiple hard inquiries into the plaintiff's credit file—which contained inaccurate information—was sufficient to establish that the inaccurate information was published to third parties.

13 The plaintiff agrees that Experian provided evidence to show that Ally Financial did not receive the inaccurate information. Pl.'s Obj. at 6-7 [Doc. No. 128]. Thus, the plaintiff does not appear to contest a summary judgment determination against him related to Ally Financial.

The court agrees with the plaintiff. In Losch v. Nationstar Mortg. LLC, 995 F.3d 937 (11th Cir. 2021), the Eleventh Circuit considered the district court's grant of summary judgment to Experian on plaintiff Henry Losch's claim that Experian violated the Fair Credit Reporting Act by inaccurately reporting—even after Losch notified it of the error—that Losch was more than $10,000 delinquent on a $140,000 mortgage that was discharged in bankruptcy. See generally Losch, 995 F.3d 937 (11th Cir. 2021). The Eleventh Circuit vacated the district court's judgment and remanded the case, finding that the measures that Experian took after Losch notified it of the inaccuracies in his report were not "reasonable" as a matter of law. Id. at 940. However, before the Eleventh Circuit reached the merits of the case, it paused upon the question of whether Losch had Article III standing to sue: specifically, whether Losch had shown that he had suffered a concrete injury-in-fact. Id. at 942. In concluding that he had, the court found that evidence of inquiries to Losch's credit report was sufficient to show that the report with the inaccurate information was sent to third parties. Id. at 943. In making this determination, the Eleventh Circuit acknowledged Experian's argument that the inquiries into Losch's credit were "soft" inquiries, "'most [of which] merely involve[d] prescreen inquiries, where the creditor receive[d] only confirmation that a consumer meets a set of criteria selected by the creditor, as opposed

to the consumer's complete report." Id. (citations to the record omitted). However, the court continued:

But in saying "most," Experian implicitly acknowledges the possibility that creditor received Losch's full report, and it admits that it can't say for certain whether the [inaccurate mortgage account] was disclosed to third parties in connection with the prescreen inquiries. Drawing all factual inferences in Losch's favor at summary judgment, as we must, the evidence of inquiries on his credit report is sufficient to show that the report was sent to third parties.

Id.

In this case, the plaintiff's post-bankruptcy credit file contained inaccurate information about the First Franklin account. Moreover, it appears to be undisputed that the plaintiff's post-bankruptcy credit file reflected multiple hard inquiries into the plaintiff's credit. In the absence of evidence that such hard inquiries did not contain the information about the First Franklin account, this court joins Judge Story in Benjamin v. Experian Info. Solutions, 561 F. Supp. 3d at 1341-42 (N.D. Ga. 2021) in interpreting Losch to hold that evidence of such inquiries is sufficient for a jury to reasonably "infer that the creditors who made hard inquiries saw the inaccurate information reported by Experian." Thus, the court concludes that the plaintiff has met his burden and demonstrated that there is a genuine issue of material of fact as to third-party publication.

3. Did the Plaintiff Provide Evidence that Experian's Published Inaccuracy Caused Harm?

The plaintiff contends that because there is an issue of material fact as to third-party publication, there is also an issue of fact as to the degree of harm the plaintiff suffered. Pls.' Br. at 7 [Doc. No. 128]. The court agrees with this proposition. In Losch, the Eleventh Circuit concluded—for purposes of Article III standing—that plaintiff Losch did not need to establish that the false reporting of a debt "would be worse for his credit score than a true reporting of a discharged-in-bankruptcy status" to establish an injury-in-fact because the injury wasn't one to his credit score, "but rather, the false reporting about his debt." 995 F.3d at 943. In making this determination, the Eleventh Circuit relied on its previous decision in Pedro v. Equifax, Inc., 868 F.3d 1275, 1279-80 (11th Cir. 2017), in which it determined that the harm caused by a violation of the FCRA "bore a close relationship to the common-law tort of defamation, which was traditionally actionable per se." Id. at 942-43.

Although the Eleventh Circuit was analyzing whether Losch suffered an "injury-in-fact" for purposes of standing rather than actual damages, this court can find no logical reason why this guidance regarding an injury-in-fact (which requires that a plaintiff show "that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical" "that is fairly traceable to the challenged conduct of the defendant")¹⁴ would not apply to a determination of whether the plaintiff has demonstrated that he suffered actual damages (which includes both economic and non-economic damages, such as mental distress, humiliation, or injury to reputation and creditworthiness)¹⁵ caused

14 See Losch, 995 F.3d at 942 (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) for standing requirements and definition of injury-in-fact) (internal quotation marks omitted).

15 Williams v. Credit One Bank, N.A., Civil Action File No.: 1:19-cv-949-MHC-JKL, 2019 WL 11502903 at *9, 2019 U.S. Dist. LEXIS 235565 at *26 (N.D. 2019) (citing cases).

by the defendant's inaccurate statement. In other words, this court reads Losch for the proposition that a plaintiff suffers an injury if false information is reported, the value of which is an issue for the jury.

a. Additional Evidence of Emotional Distress

In addition, the court finds that the plaintiff has provided sufficient evidence in support of his claim for emotional distress damages to proceed to trial. See Pl.'s Interrog. Resp. at 16 ¶ 13 [Doc. No. 96-13] (stating that his "actual damages consist primarily of emotional distress"); Pl.'s Decl. ¶¶ 14-20 [Doc. No. 102-10] (describing how he believed the inaccurate reporting of the First Franklin account was the cause of his credit denials and linking his anxiety and depression to those denials and the inaccurate reporting). The magistrate judge declined to credit the declaration, finding it (1) contradicted his previous deposition testimony; and (2) violated 28 U.S.C. § 1746 because it was not properly dated. R & R at 37-38 [Doc. No. 126]. When reviewing the plaintiff's deposition in the light most favorable to him, however, this court comes to a different conclusion than the magistrate judge and does not find—when read in full—that it is so contradictory as to foreclose this issue from a jury.¹⁶ Moreover, the very fact that this court and the magistrate judge have different overall impressions of the plaintiff's testimony suggests to this court that this is an issue better addressed by a jury, who can properly weigh the plaintiff's testimonies at trial.

16 In his declaration, the plaintiff explains that when he checked his credit reports, he learned that both Experian and Trans Union were reporting he still owed the debt to First Franklin and he believed the inaccurate reporting, of the account was the cause of his credit denials. Pl.'s Decl. ¶¶ 13-14 [Doc. No. 102-10]. In his deposition, he also stated that his inability to get credit "has ... to do with" his First Franklin account and that it was causing him anxiety, as follows:

Q Okay. In any event, there's certainly nothing about the 1st Franklin reporting that's causing you any anxiety or anything like that, right?

MS. DAKROUB: Object to form.

A As I said, I can't get no credit.

Pl.'s Dep. at 76:12-18 [Doc. No. 102-4].

Q Okay. So the bankruptcy, has that not caused you emotional distress? A The bankruptcy — everything has caused me distress right now. Losing my wife and my children. Filing — like I said, before filing Chapter 7 and then have a negative report on my credit report, can't get nothing, still in the same situation I was in before.

Id. at 100:8-13.
While this court agrees that the plaintiff's deposition testimony was less than clear on a number of topics, it also appears that the plaintiff was intimidated by the questioning and that it was almost impossible for him to answer many of the questions in light of the adversarial exchange between opposing counsel. Thus, the court is unwilling to determine on summary judgment that the plaintiff's deposition testimony forecloses his claim for emotional distress damages.

In regard to the plaintiff's failure to date his declaration, the court agrees with the magistrate judge that such omission rendered the declaration technically deficient. See 28 U.S.C. § 1746. However, the court will consider this declaration to the extent that it emphasizes that a question of fact exists regarding the emotional distress damages suffered by the plaintiff because of the inaccuracy in his credit file. Experian can cross-examine the plaintiff regarding his deposition testimony and the date of his declaration at trial.

b. The Credit Denials

The magistrate judge found that the plaintiff failed to provide any evidence to establish that Experian's inaccurate information proximately caused the plaintiff to suffer the credit harm he alleges. R & R at 26-32 [Doc. No. 126]. In his objections,

the plaintiff contends that he has met his burden to establish that the First Franklin inaccuracy caused his credit denials and the magistrate judge erred in deciding otherwise. Pl.'s Objs. at 10-11 [Doc No. 128]. In support of this, he maintains that "inaccurately reporting an account with a balance when no balance exits adversely affects a consumer's credit even if reported as never late." Id. at 10. The plaintiff argues that this is particularly true post-bankruptcy for "consumers who typically have minimal or no credit use/utilization except the inaccurately reported balance." Id.; see also Pl.'s Resp. to Def.'s Mot. for Summ. J. at 15 [Doc. No. 102]. In both his objection to the R & R and his original response to the defendant's summary judgment brief, the plaintiff points the court to the following information about the impact of debt-to-income ratios on Experian's website:

Your debt-to-income ratio (DTI) compares the total amount you owe every month to the total amount you earn. Lenders may consider your debt-to-income ratio in tandem with credit reports and credit scores when weighing credit applications.

...

Your income is not included in your credit report, so your DTI never affects your credit report or credit score. However, many lenders calculate your DTI when deciding to offer you credit. That's because DTI is considered an indicator of whether you'll be able to repay a loan. If you have a low DTI, meaning you make much more than you owe, you might be better able to repay a new loan. However, if you already have a lot of debt, taking out additional credit might make it difficult for you to meet your financial obligations.

See Pl.'s Statement of Additional Fact ¶ 21 [Doc. No. 102-2] and Def.'s Resp. to Pl.'s Statement of Additional Facts ¶ 21 [Doc. No. 111] (both citing to Experian Website Printouts [Doc. No. 102-17]).

The Eleventh Circuit has been clear that the plaintiff bears the burden of proving that an inaccurate credit report was a causal factor in the credit denials if the plaintiff seeks damages for the same. Cahlin, 936 F.2d at 1161; see also Jackson, 167 F. App'x at 146 ("[A] consumer asserting claims under §§ 1681i(a) or 1681e(b) against a credit reporting agency bears the burden of proving that the agency's credit report was a causal factor in the denial of his credit application."). "While a plaintiff must prove that the inaccurate entry was a 'substantial factor in bringing about' the denial of credit, he need not eliminate the possibility that correct adverse entries or any other factors also entered into the decision to deny credit." Enwonwu, 364 F. Supp. 2d at 1366 (citing Cahlin, 936 F.2d at 1161). This is because "[f]orcing a plaintiff affirmatively to rule out other explanations for the credit denial ignores the fact that decisions to deny credit will frequently have more than one cause." Id. However, "the burden of proving causation remains with the [p]laintiff at all times and never shifts to the [d]efendant." Id. "Utilization [of an errant credit report] by the credit granting agency, without more, cannot support the inference of causation." Id.

In this case, the only evidence that the plaintiff has provided is general information on Experian's website that states that "lenders may consider your debt-to-income ratio in tandem with credit reports and credit scores when weighing credit applications." Experian Website Printouts [Doc. No. 102-17]). However, the fact that it is within the realm of hypothetical possibility that some of the plaintiff's desired creditors might have considered his erroneously reported pre-existing debt in making their credit decision is insufficient to overcome the defendant's summary

judgment motion on this issue. See Giles v. Winn-Dixie Montgomery, LLC, 574 F. App'x 892, 894 (11th Cir. 2014) (citing Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)) (finding that "a plaintiff's speculation about the cause of a fall is insufficient evidence to overcome a summary judgment motion" because "'[s]peculation does not create a genuine issue of fact.'"). Accordingly, the court agrees with the R & R that Experian is entitled to summary judgment on this issue, and the plaintiff's objections regarding the same are overruled.

4. Has the Plaintiff Established Evidence of Willfulness?

To prove that Experian willfully failed to comply with § 1681e(b), the plaintiff "must establish that Experian either knowingly or recklessly violated that section." Pedro, 868 F.3d at 1280 (citations omitted). "A willful violation requires that a party's reading of the FCRA is—at minimum—objectively unreasonable." Benjamin, 561 F. Supp. 3d at 1344 (citing Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 69, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007)). "[A] company subject to the FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statute's terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless." Safeco, 551 U.S. at 69, 127 S.Ct. 2201. "That is, a company acts recklessly when its conduct entails an unjustifiably high risk of harm that is either known or so obvious that it should be known." Younger v. Experian Info. Solutions, Inc., 817 F. App'x 862, 869-70 (11th Cir. 2020) (citing Marchisio v. Carrington Mortg. Servs., LLC, 919 F.3d 1288, 1303 (11th Cir. 2019)). "A violation isn't willful where a defendant 'followed an interpretation that could reasonably have found support in the courts ...'" Losch, 995 F.3d at 947 (quoting Safeco, 551 U.S. at 70 n.20, 127 S.Ct. 2201).

As set forth above, the magistrate judge recommended that the court grant summary judgment on this issue because she found that Experian's reliance on procedures set forth in White, though not binding, effectively foreclosed a claim that Experian recklessly or knowing violated the law. R & R at 45-46 [Doc. No. 126]. The plaintiff argues that the magistrate judge erred by failing to consider that Experian has been on notice since 2020 that its purported compliance with the White Order was not reasonable, much less reasonable as a matter of law. Pl.'s Objs. at 18, 21 [Doc. No. 128]. He further contends that "where, as here, a CRA has specific notice that certain procedures are generating systematic inaccuracies, the CRA has an affirmative duty to implement stricter, more accurate procedures." Id. at 18.

In support of his contentions, the plaintiff points to two categories of cases: (1) those that state—as the R & R states—that White is not binding on the court and does not by itself establish compliance with the FCRA; and (2) those that state that Experian has been on notice since at least 2020, but actually before then, that reporting outstanding balances for discharged debt is inaccurate. See Obj. to R & R at 18-20 [Doc. No. 128]. However, neither of those propositions support the plaintiff's position that there is a question of fact as to whether Experian willfully failed to comply with Section 1681e(b).

In the absence of any controlling authority stating otherwise, this court agrees with Benjamin that "Experian's implementation of procedures that were consistent with those approved of in White does support the conclusion, as a matter of law, that Experian did not knowingly or recklessly violate the FCRA." Benjamin, 561

F. Supp. 3d at 1344. Moreover, this court agrees that it is possible to "simultaneously find a genuine dispute regarding the reasonableness of Experian's report-preparation procedures and conclude that Experian followed an interpretation that had or could reasonably have found support in a court." Id.

Because the plaintiff has not pointed to any facts that might establish that Experian knew it was misreporting the plaintiff's debt and has not provided any controlling authority undermining Benjamin—which this court finds persuasive—the court overrules the plaintiff's objection and adopts the R & R on this issue.

IV. Conclusion

For the reasons stated herein, the court GRANTS the plaintiff's motions for leave to file the incorporated surreply [Doc. No. 130] and response to supplemental briefing [Doc. No. 133]. In addition, the court ADOPTS IN PART and DECLINES TO ADOPT IN PART the R & R [Doc. No. 126]. Accordingly, Experian's motion for summary judgment is DENIED with respect to the inaccuracy of the information reported and as to whether the plaintiff experienced emotional distress stemming from the inaccurate reporting; the motion is otherwise GRANTED.

The parties are hereby ORDERED to submit their proposed pretrial orders within 30 days of the date of this order.

SO ORDERED, this 6th day of February, 2023.

FINAL REPORT AND RECOMMENDATION

CATHERINE M. SALINAS, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the motion for summary judgment filed by Defendant Experian Information Solutions, Inc. ("Defendant" or "Experian"). [Doc. 96]. The motion has been fully briefed and is before me for a Report and Recommendation.

Plaintiff's one-count complaint alleges that Experian violated Section 1681e(b) of the Fair Credit Reporting Act by failing to follow reasonable procedures to assure maximum possible accuracy of information in the preparation of Plaintiff's consumer reports pertaining to statutorily dischargeable debts that arose prior to Plaintiff's filing for bankruptcy; and, as a result, Experian inaccurately reported an account that Plaintiff had with First Franklin Financial ("First Franklin") as "open" with a balance of $1,336 when it should have reported the status of the pre-petition debt with First Franklin as included in or discharged in Plaintiff's Chapter 7 bankruptcy with a $0 balance. Plaintiff alleges that he was injured as a result. [Doc. 1, Compl. ¶¶ 1, 43-48, 65, 69, 74, 78, 80]. He alleges both negligent violation of the law (a claim that requires actual damages) and willful violation of the law (a claim that does not require actual damages).

For the reasons discussed below, I will recommend that Experian's motion for summary judgment be granted. Plaintiff has failed to show the actual damages necessary for his negligence claim and has failed to show that Experian either knowingly or recklessly violated the law for his willfulness claim.

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56; Ezell v. Wynn, 802 F.3d 1217, 1222 (11th Cir. 2015). The moving party bears the initial burden of showing the court "the basis for 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 demonstrate the absence of a genuine issue of material fact" and "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en banc). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party fails to discharge this initial burden, the motion must be denied. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993).

If the burden is met, however, the non-moving party must then "go beyond the pleadings and ... designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548 (citation omitted). "A 'mere scintilla' of evidence is insufficient; the non-moving party must produce substantial evidence in order to defeat a motion for summary judgment." Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (citation omitted). Mere conclusions and factual allegations unsupported by evidence are insufficient to survive a motion for summary judgment. See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citation omitted).

It is not the Court's function to scour the record in search of evidence to defeat a motion for summary judgment. Instead, the Court relies on the non-moving party to identify the evidence which creates an issue of triable fact. See FED. R. CIV. P. 56(c)(1)-(3); Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). Resolving all doubts in favor of the non-moving party, the Court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable inferences will be made in the non-moving party's favor. Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993).

II. FACTS ¹

In light of the foregoing summary judgment standard, the Court finds the following facts for the purpose of resolving Experian's pending motion for summary judgment only.

On December 31, 2019, Plaintiff took out a cash loan in the amount of $1,596 with First Franklin so that he could pay for a dental procedure.² [Doc. 99, Def.'s Stmt. of Mat. Facts ("DSMF") ¶ 1; Doc. 109 (sealed) at 2, First Franklin Credit Reporting of Coleman Account].

On January 6, 2020, six days after incurring the debt to First Franklin, Plaintiff filed a petition for Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the Northern District of Georgia and signed sworn statements that his schedule of liabilities

and list of creditors were true and correct. [DSMF ¶¶ 3-4]. Plaintiff, however, failed to list the First Franklin debt on his bankruptcy petition or schedule of liabilities, and never sought to amend his bankruptcy petition or schedules to add First Franklin as a creditor to his bankruptcy. [Id. ¶¶ 5-6]. Because First Franklin was not listed on Plaintiff's petition as a creditor, the bankruptcy court did not provide First Franklin with notice of Plaintiff's bankruptcy. [Id. ¶ 7]. Plaintiff testified in his deposition that he was not sure why First Franklin was not listed as a creditor, but the omission was not intentional.³ [Doc. 96-2, Coleman Dep., at 55-56].

Experian's internal records indicate that First Franklin first reported Plaintiff's debt to Experian on February 19, 2020. [Doc. 96-3, Declaration of Mary Methvin ("Methvin Decl."), ¶ 6; Doc. 102-5, 30(b)(6) Deposition of Mary Methvin ("30(b)(6) Methvin Dep.") at 99]. At that time, First Franklin reported to Experian that Plaintiff's account was opened on December 31, 2019; the account condition was "open"; the account status was "current"; there was no history of any late payments; and the balance was $1,336 as of December 2019. [Methvin Decl. ¶ 6].

On April 13, 2020, the bankruptcy court entered a discharge order in Plaintiff's bankruptcy. [DSMF ¶ 12; Doc. 96-7, Discharge Order]. Experian received notice of Plaintiff's bankruptcy discharge from its public-records vendor, LexisNexis Risk Data Management, on the same day the bankruptcy court entered the Discharge Order. [DSMF ¶ 14].

Upon notice that a consumer has received a discharge in a Chapter 7 bankruptcy proceeding, Experian applies an automated "scrub" procedure to that consumer's credit files. [DSMF ¶ 15]. The scrub process evaluates the debts in a consumer's credit file, identifies pre-bankruptcy debts Experian considers most likely to have been discharged in the consumer's bankruptcy, and causes those debts to report as discharged in bankruptcy and with a zero ($0) balance by applying an industry-standard code known as a Consumer Information Indicator with a value of "E." [Methvin Decl. ¶ 8].

Experian developed its bankruptcy scrub in order to implement the procedures it had agreed to pursuant to a class action settlement agreement and order issued by the U.S. District Court for the Central District of California in White v. Experian Information Solutions, Inc., No. SA CV 05-1070 DOC (MLGx) (Lead Case) and related cases (including No. 05-cv-1073, 2008 WL 11518799 (C.D. Cal. Aug. 19, 2008) (hereinafter "the White Order"). [Methvin Decl. ¶ 8; Doc. 96-8, the White Order]. The action asserted claims on behalf of a putative nationwide class of consumers relating to each of the defendants' (including Experian's) procedures for reporting pre-bankruptcy debts of consumers who have obtained discharges through Chapter 7 bankruptcy proceedings. White, 2008 WL 11518799, at *1.

The White Order provides, in pertinent part, that Experian (and the other defendant credit reporting agencies ["CRAs"]), shall "assume that certain categories of pre-bankruptcy consumer debts have been discharged in Chapter 7 bankruptcies based on the statistical likelihood of discharge of these categories of debt, and without either the affected creditors or Consumers reporting the debt to Defendants as having been discharged." White, 2008 WL 11518799, at *13, ¶ 5.1. According to Experian, the White Order required its scrub to exclude debts last reported with a

"Current Status," which the Order defined as "an account status or rating indicating that, as of the date of last reporting, there is no outstanding, overdue, and delinquent balance currently due." [DSMF ¶ 18, citing the White Order, ¶¶ 2.10, 3.2(b)(ii)(E)]. An outstanding balance on an account, alone, was not a factor in the scrub to determine whether the account was to be considered for being reported as included in bankruptcy. [Doc. 102-2, Pl.'s Supplemental Statement of Additional Material Facts ("PSAF"), ¶ 8]. If a creditor independently informs Experian that a debt was discharged in bankruptcy, Experian will update the consumer's file to reflect a $0 balance and the discharge. [30(b)(6) Methvin Dep. at 15-17]. Here, First Franklin did not update its reporting of Plaintiff's account after February 19, 2020, and it did not add any bankruptcy indicators to its tradeline that would have informed Experian that the debt was included in bankruptcy. [Methvin Decl. ¶ 6].

On April 20, 2022, Experian applied its bankruptcy scrub procedure to Plaintiff's credit file and updated multiple pre-bankruptcy debts to report as discharged in bankruptcy and with a $0 balance. [DSMF ¶ 19; Methvin Decl. ¶ 10; PSAF ¶¶ 4-5]. Experian's scrub excluded Plaintiff's First Franklin account because it was reporting with an account status of "open/never late" and "current." [DSMF ¶ 20; Methvin Decl. ¶ 10; Doc. 102-5, 30(b)(6) Methvin Dep. at 27]. Experian therefore did not report that the account had a $0 balance or that it had been discharged in bankruptcy. [PSAF ¶ 2]. It is undisputed that Experian does not look at bankruptcy dockets when determining whether to report an account as included in bankruptcy. [PSAF ¶ 23].

Experian continued to monitor Plaintiff's credit file following his bankruptcy through a secondary "look-back" scrub that updated pre-bankruptcy debts that did not qualify for its initial scrub or that were later added to the consumer's credit file. [DSMF ¶ 21]. The secondary scrub evaluates a consumer's credit file for 18 months following a consumer's bankruptcy discharge. [Methvin Decl. ¶ 11]. According to Experian, its secondary scrub did not update Plaintiff's First Franklin account because First Franklin never reported that Plaintiff's debt was anything other than open and current. [Id.].

In fact, other than its initial report in February 2020 that Plaintiff's account was "open" and "current" with a balance of $1,336, First Franklin never updated its tradeline. [30(b)(6) Methvin Dep. at 70]. Where, as with Plaintiff's First Franklin account, a furnisher stops updating an open account with a balance amount greater than zero in Experian's files for more than 90 days, Experian describes those tradelines as "stale accounts," meaning accounts that are "not as current or as up-todate as ... we would ideally like." [PSAF ¶¶ 11-12, 14, 17; 30(b)(6) Methvin Dep. at 80-81].

Experian provides what are called metric reports on a monthly basis to data furnishers like First Franklin to help them "evaluate the data that they're sending and look for any type of errors and help them be in better compliance [and] make corrections as needed to their reporting." [PSAF ¶ 10; Doc. 111, Def.'s Resp. to PSAF ¶ 10; 30(b)(6) Methvin Dep. at 78]. The reports provide notice of reporting errors and anomalies. One such anomaly occurs when a furnisher stops updating an account in Experian's files. [PSAF ¶ 11]. Experian's 30(b)(6) witness testified that Experian, however, will not take any action on stale accounts that Experian considers to not be "negative"—i.e., there is no history of missed payments or collections. [PSAF ¶ 18; 30(b)(6) Methvin Dep. at 75-76]. She testified further that Coleman's First Franklin account did not appear to be "negative." On July 20, 2020 and again on December 4, 2020, in response to Plaintiff's requests, Experian provided Plaintiff with a copy of his credit file (also known as "consumer disclosures" or "file disclosure"). [DSMF ¶ 23; Methvin Decl. ¶ 13; Doc. 100-1 (corrected Ex. I, July 20, 2020 file disclosure); Doc. 96-10 (Ex. J, Dec. 4, 2020 file disclosure)]. Experian provides consumer disclosures only to the consumer himself and does not share them with third parties. [Methvin Decl. ¶ 12]. The First Franklin account was one of only two debts reporting in good standing on Plaintiff's July 2020 file disclosure and was the only debt reporting in good standing on his December 4, 2020 file disclosure. On each, the First Franklin account was listed in the area of the report titled, "Your accounts in good standing," and the account was reporting with the status of "Open/Never late" and a recent balance of "$1,336 as of Dec[.] 2019." [Doc. 100-1 at 4; Doc. 96-10 at 4].⁴ By contrast, in December 2020, non-party Equifax reported the First Franklin account as closed with a $0 balance owing.⁵ [Doc. 103-2 at 10-11 (sealed)].

Plaintiff testified that he did not pay attention to or review the information on his Experian credit reports; instead, he forwarded the reports to his attorneys, upon whom he was relying to monitor his credit. [Coleman Dep. at 65-67, 69, 78-79, 81, 83, 91]. Plaintiff testified he did not get personally involved in the details of what was reporting or not reporting, and/or why. [Id. at 66]. Although Plaintiff knew he could dispute inaccurate information directly with Experian, neither he nor his bankruptcy attorneys ever did so. [DSMF ¶ 27; Coleman Dep. at 26; Doc. 96-12 at 6-7, Pl.'s Resp. to Requests for Admission Nos. 8 and 9]. Thus, it is undisputed that no one—neither Coleman nor First Franklin—ever advised Experian that the First Franklin debt had been discharged.

On December 2, 2020, Plaintiff and his wife jointly applied for an auto loan with Ally Financial ("Ally"). [DSMF ¶ 28]. Ally made a "hard inquiry" into Plaintiff's Experian credit file in connection with that application.⁶ [DSMF ¶ 29; Methvin Decl.

¶ 13]. Experian has submitted a declaration, under penalty of perjury, of Kelly Maynard, Senior Director for Ally, in support of its motion for summary judgment. [Doc. 96-14, Declaration of Kelly Maynard ("Maynard Decl."), ¶ 5]. In the declaration, Maynard avers that the report provided to Ally in response to its hard inquiry originated from an Experian affiliate, Clarity, and it did not include any information about Plaintiff's First Franklin account. [Id.]. Coleman has not disputed this fact.

Ally also obtained information about Plaintiff from two other consumer reporting agencies, TransUnion and SafeStream, in connection with Plaintiff's auto loan credit application. [Id. ¶ 4]. TransUnion's credit report included tradeline detail, and reported Plaintiff's First Franklin account as in good standing and open/never late. [Id. ¶ 6]. According to Maynard, "A tradeline reporting in good standing like Mr. Coleman's 1st Franklin Financial Account would not be a factor that would cause someone to be denied credit by Ally when applying for a car loan." [Id.]. "After reviewing the application and considering the information Ally obtained regarding the co-applicants, including the information provided by Experian, Ally was not agreeable to handling the proposed transaction," and sent Plaintiff a denial letter on December 16, 2020, informing him that it was denying his application based on the following key factors: "a) Insufficient number or no open accounts recently reported; b) [A] nontraditional credit inquiry at Clarity too recently; c) [T]oo high a total number of inquiries; and d) Lack of sufficient relevant bankcard or revolving account information." [Id. ¶ 8 (internal quotation marks omitted), citing Ally/Coleman 000047]. According to Maynard, the First Franklin account was not provided as a reason for, and had no bearing on, Ally's decision not to handle the proposed transaction. [Id.]. Again, Coleman has not disputed this evidence.

As reflected on the December 4, 2020 credit report provided by Plaintiff, there were ten hard inquiries to Experian after his bankruptcy discharge, indicating that following Plaintiff's bankruptcy discharge, Plaintiff applied for credit or sought financing from ten different entities, including Ally. [PSAF ¶¶ 35-45; Doc. 103-1 at 15]. Plaintiff testified that he was denied credit by each of those potential creditors, but he is "not sure" and does not know if the reason any of them provided for denying him credit was because of the First Franklin account. [Coleman Dep. at 76, 94-95, 96, 100]. As with the Experian consumer disclosures, Plaintiff testified that he did not review the denial letters, other than to see that they were credit denial letters; he just forwarded them to his lawyers.⁷ [Id. at 95]. When asked during his deposition if it was correct that he sued both Experian and TransUnion about the reporting of his First Franklin account, he replied, "My lawyer sued them. I didn't sue no one. My lawyer sued them. I'm not an expert." [Id. at 67]. Experian does not store copies of the credit reports or information sent to third party subscribers and does not maintain a permanent record of what information it provides to subscribers who make a hard inquiry. The information provided depends on what information the subscriber requests, and may include a full report with account-level detail or may include more limited information, such as a credit score. [Methvin Decl. ¶ 14; 30(b)(6) Methvin Dep. at 94-95]. Experian does not have a record of the information it provided to Ally. [Methvin Decl. ¶ 15]. And Coleman has provided no evidence as to what, if any, information concerning Plaintiff's First Franklin account was provided to any of the entities who made hard inquiries into Plaintiff's Experian credit file. In fact, Coleman has provided no evidence to determine which credit reporting agency's information was used in determining whether to approve his credit applications. [Doc. 96-13 at 22].⁸

III. DISCUSSION

Plaintiff's complaint alleges that Experian negligently and willfully violated Section 1681e(b) of the FCRA by failing to follow reasonable procedures to assure maximum possible accuracy in the preparation of Plaintiff's consumer reports, and consequently Experian reported inaccurate information about Plaintiff's First Franklin discharged debt, damaging his credit score and causing other damages, including unspecified credit harm, loss of credit opportunity, credit denials, financial harm, and emotional distress. [Doc. 1, Compl., ¶¶ 1, 55, 57, 65, 80]. Plaintiff's Complaint specifically alleges that Experian inaccurately reported Plaintiff's First Franklin account as open/never late with an outstanding balance of $1,336 when it should have reported the account as included in Plaintiff's bankruptcy discharge on April 13, 2020, with a $0 balance. [Id. ¶¶ 45-46]. Plaintiff alleges "upon information and belief" that Experian's inaccurate reporting was responsible for the denial of an automobile loan and/or one or more personal loans that he applied for following his bankruptcy discharge. [Id. ¶¶ 58-59].

A. 15 U.S.C. § 1681e(b)

Section 1681e(b) of the FCRA requires a CRA preparing a "consumer report" to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." Benjamin v. Experian Info. Sols., Inc., 561 F. Supp. 3d 1330, 1354 (N.D. Ga. 2021) (citing 15 U.S.C. § 1681e(b)). To establish a prima facie violation of Section 1681e(b), a consumer plaintiff must present evidence that (1) a credit reporting agency's "consumer report" contained factually inaccurate information; (2) that the procedures it used in preparing and distributing the report were unreasonable; and (3) that the consumer plaintiff was injured as a result. Id. (citing Losch v. Nationstar Mortg. LLC, 995 F.3d 937, 944 (11th Cir. 2021)); see also Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1157, 1160 (11th Cir. 1991); Nagle v. Experian Info. Sols., Inc., 297 F.3d 1305, 1307 (11th Cir. 2002).

The FCRA defines a "consumer report" as "any written, oral, or other communication of any information by a [CRA] bearing on a consumer's credit worthiness,

credit standing, credit capacity, character, [or] general reputation ... which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for [credit]." 15 U.S.C. § 1681a(d)(1). Therefore, unlike violations under other provisions of the FCRA, a violation of Section 1681e(b) concerns only information communicated about a consumer to a third party. Benjamin, 561 F. Supp. 3d at 1354 (citing Collins v. Experian Info. Sols., Inc., 775 F.3d 1330, 1335 (11th Cir. 2015) (distinguishing between the terms "consumer report" and credit "file," and concluding that a "'consumer report' requires communication to a third party")).

The Eleventh Circuit has recently adopted a definition of "maximum possible accuracy" that requires CRAs' information to be "factually true and also unlikely to lead to a misunderstanding." Benjamin, 561 F. Supp. 3d at 1354-55 (citing Erickson v. First Advantage Background Servs. Corp., 981 F.3d 1246, 1252 (11th Cir. 2020)). This definition requires courts to "look to the objectively reasonable interpretations of the report." Id. In other words, "whether a report is misleading is an objective measure, one 'that should be interpreted in an evenhanded manner toward the interests of both consumers and potential creditors in fair and accurate credit reporting.'" Erickson, 981 F.3d at 1252 (citing Cahlin, 936 F.2d at 1158). "If a report is so misleading that it is objectively likely to cause the intended user to take adverse action against its subject, it is not maximally accurate. On the other hand, the fact that some user somewhere could possibly squint at a report and imagine a reason to think twice about its subject would not render the report objectively misleading." Id. To succeed on his claim, Plaintiff needs to show both that a consumer report provided by Experian to a third party failed to comply with the FCRA's "maximum possible accuracy" standard (in other words, the consumer report was inaccurate) and that the inaccurate report caused him to suffer damages. Id. at 1250-51.

In its motion for summary judgment, Experian argues that Plaintiff's § 1681e(b) claim fails as a matter of law because (1) Plaintiff cannot prove or establish that the information it reported about the First Franklin debt to any third party was inaccurate; and (2) Plaintiff has failed to come forward with evidence from which a reasonable jury could find causation and damages.

1. Did a Consumer Report Provided by Experian Contain Factually Inaccurate Information?

Experian first argues that the information it reported was accurate because the First Franklin debt was not discharged in Plaintiff's bankruptcy.

The parties strongly disagree about what statutory provision, case law, and/or legal standards apply to pre-bankruptcy debts like Plaintiff's First Franklin secured loan that are neither listed nor scheduled in the plaintiff's bankruptcy papers. Plaintiff contends that such a debt is discharged by operation of law in a subsequent Chapter 7 "no-asset" bankruptcy discharge. Experian, on the other hand, asserts that debtors must include such debts in their bankruptcy papers for there to be a discharge and that when a debt is not included, the debtor must affirmatively show that his failure to list a creditor was an honest mistake. Both parties acknowledge there is a circuit split on this issue, with cases both in this circuit and in other circuits going different ways. The question is complicated by the fact that Experian also claims (and Plaintiff does not dispute) that it applied its bankruptcy scrubs in accordance with the White Order, and as a result, Plaintiff's First Franklin debt was

not reported by Experian as having been discharged in Plaintiff's Chapter 7 bankruptcy. Thus, whether the information was accurate or not depends on whether the First Franklin debt was discharged by operation of law in April 2020.

Experian chiefly relies on the Eleventh Circuit case In re Baitcher, 781 F.2d 1529 (11th Cir. 1986), for the proposition that because Plaintiff omitted from his bankruptcy schedules his First Franklin debt, and never sought to correct that omission, that his debt was excluded from his bankruptcy discharge as one that was neither listed nor scheduled in a timely fashion, under 11 U.S.C. § 523(a)(3). [Doc. 96 at 7]. According to Experian, the question of whether the debt was or was not discharged is a legal question that neither the courts nor the FCRA require Experian to determine.⁹ [Doc. 96, Experian Br., at 10, citing Hunt v. JPMorgan Chase Bank, N.A., 770 F. App'x 452, 458 (11th Cir. 2019) (stating that to prevail on a § 1681e(b) claim, a "plaintiff must show a factual inaccuracy rather than the existence of disputed legal questions"); Chuluunbat v. Experian Info. Sols., Inc., 4 F.4th 562, 568 (7th Cir. 2021) (holding that the "central question is whether the alleged inaccuracy turns on applying law to facts or simply examining the facts alone.") (italics in original); Sessa v. Linear Motors, LLC, 576 F.Supp.3d 1, 10-11 (S.D.N.Y. 2021) ("All circuit courts to have opined on whether accuracy in the FCRA context includes legal inaccuracies are unanimous: [t]he claimed inaccuracy must be factual, not legal.")].

Plaintiff responds that pursuant to bankruptcy law, all of a no-asset Chapter 7 debtor's pre-petition debts are discharged, including unlisted and unscheduled debts. [Doc. 102, Pl.'s Resp. Br., at 7-8]. Plaintiff has cited numerous cases that support his position, as well as the relevant bankruptcy statute, 11 U.S.C. § 727(b), which provides for the discharge of "all debts that arose before the date" of the discharge order in a Chapter 7 bankruptcy, and makes no distinction between scheduled or unscheduled debts. Thus, Plaintiff contends that in a no-asset Chapter 7 bankruptcy matter like Plaintiff's, "a proof of claim need not be filed" because there are no assets to be claimed; therefore, the exceptions listed in 11 U.S.C. Section 523(a)(3)(A) do not apply, and discharge is unaffected by failing to schedule a debt. [See Doc. 102 at 8, citing, among other cases, Keenom v. All Am. Mktg., 231 B.R. 116, 129 (Bankr. M.D. Ga. 1999) (holding that in a no-asset Chapter 7 case, no purpose would be served by reopening the case to allow debtors to amend their schedules to include a previously omitted creditor because the statute defining the scope of a Chapter 7 debtor's discharge does not create an exception for unlisted or unscheduled debts, and all of a debtor's pre-petition debts, including unlisted or

unscheduled debts, are discharged in Chapter 7, subject only to statutory dischargeability exceptions [such as child support, alimony, recent purchase of luxury goods, education loans, government fines, among other exceptions]; Benjamin, 561 F. Supp. 3d at 1360; see also In re Bledsoe, No. 12-77911-MGD, 2013 WL 3776350, at *3 (Bankr. N.D. Ga. June 11, 2013) ("[I]n a no-asset, no-bar-date Chapter 7 case, amending schedules to add omitted creditors does not affect whether or not the debts held by those creditors are discharged.").

The undersigned finds this thorny legal question need not be answered in this case to resolve the pending motion for summary judgment. However, having studied the arguments and relevant authority, it is my view that the legal authority cited by Plaintiff on this issue is more persuasive and on point than Experian's. There is no probative evidence that Plaintiff fraudulently, intentionally, and/or in bad faith purposely failed to include his First Franklin debt in his bankruptcy papers, or formally sought to reaffirm his debt to First Franklin. As such, bankruptcy law operates to discharge the debt. 11 U.S.C. § 727(b); In re Bledsoe, 2013 WL 3776350, at *3. Viewing the facts in the light most favorable to Coleman, the non-movant, a reasonable juror could conclude that (1) when Plaintiff received a discharge in April 2020 in his no-asset Chapter 7 bankruptcy, his unlisted secured debt to First Franklin was discharged by operation of law; and (2) after Plaintiff received his bankruptcy discharge, it was no longer accurate for Experian to report that the First Franklin account was "open" or that it had a $1,336 balance. To the extent that Experian seeks summary judgment based on Coleman's failure to show an inaccuracy in Experian's reporting, I will recommend that the motion be denied.

2. Plaintiff Has Failed to Show a Causal Link Between the Credit Denials and Experian's Reporting of the First Franklin Account

The FCRA does not hold CRAs like Experian liable, however, for all inaccuracies. Cahlin, 936 F.2d at 1156; 15 U.S.C. §§ 1681n(a), 16810(a). Rather, "[a]s with most tort actions, a FCRA plaintiff must produce sufficient evidence from which a reasonable trier of fact could infer that the inaccurate entry was a 'substantial factor' that brought about the denial of credit." Enwonwu v. Trans Union, LLC, 364 F. Supp. 2d 1361, 1365-66 (N.D. Ga. 2005) (citing Restatement (Second) of Torts § 431(a), aff'd, 164 F. App'x 914 (11th Cir. 2006)).

In his Complaint, Coleman alleges that one of the ways he was harmed was by being denied credit. He has produced evidence that after his bankruptcy discharge, he was repeatedly denied credit. He has not, however, tied those denials to Experian's reporting of the First Franklin account as "open/never late," and with a $1,336 balance. There is no evidence that the allegedly inaccurate information concerning Plaintiff's First Franklin account operated as an adverse or negative factor in determining Plaintiff's eligibility for credit with any creditor. See 15 U.S.C. § 1681a(d)(1).

Here, the only credit reports that Plaintiff has specifically identified or pointed to—in his deposition testimony, his undated declaration, and/or the exhibits submitted in response to Experian's motion for summary judgment that contain the allegedly inaccurate First Franklin tradeline and/or inaccurate information pertaining to the loan that Plaintiff obtained from First Franklin in December 2019—are those that Plaintiff requested from Experian and/or his legal counsel obtained from Experian, Credit Karma, and/or UCS on

Plaintiff's behalf. [See Doc. 103 at 2, Pl.'s Ex. 5 (sealed) (UCS credit report provided to Plaintiff's bankruptcy attorneys); Doc. 103-1, Pl.'s Ex. 6 (sealed), Experian credit report dated 12/4/2020; Doc. 102-10, Pl.'s Decl., at 4 ¶¶ 12-17]. He has provided no evidence of what Experian provided to any of the entities that denied him credit. As such, Plaintiff has failed to point to any probative evidence showing that Experian provided any inaccurate and/or derogatory information about Plaintiff's First Franklin account to any specific third party creditor or potential creditor that adversely affected its decision to extend or not extend credit to Plaintiff as a result of Experian's inaccurate reporting of the status of Plaintiff's First Franklin account.

Even viewing the facts in the light most favorable to Plaintiff and assuming that Experian did fail to accurately report that Plaintiff's First Franklin debt was discharged by operation of the bankruptcy discharge order issued in his 2020 bankruptcy, Plaintiff has failed to show that Experian published that inaccurate information to any particular third party, or that Experian's publication proximately caused Plaintiff to suffer the credit harm that he alleges. In other words, Plaintiff has failed to connect the dots between any alleged erroneous or inaccurate reporting by Experian and his credit denials.

Plaintiff testified that he was "not sure" if a creditor ever told him that he was being denied credit because of the way Experian was reporting his First Franklin debt. [Coleman Dep. at 93-95]. Plaintiff further testified he did not know what any of his credit denial letters stated were the reasons credit was being denied because he never reviewed them except to see that the letters were denying his credit requests. [Id. at 94-95]. As noted earlier, there is only one denial letter in the record (which was submitted by Experian), and it states that the creditor, Chase, denied Plaintiff's request to open an account because Chase was not able to verify his identity. That explanation has nothing to do with Experian's purported inaccurate reporting of Plaintiff's First Franklin debt. [Doc. 97-1 at 2, Ex. O (sealed)]. The letter from Chase also references Plaintiff's credit score of 508, which Experian calculated as of May 3, 2021. [Doc. 97-1 at 2]. Nothing in the letter indicates that Experian provided any tradeline information to Chase concerning Plaintiff's First Franklin account. Moreover, the letter lists five "key factors" that Chase determined had adversely affected Coleman's credit score: insufficient number of recently reported open revolving accounts; insufficient number of accounts consistently paid on time over the last two years; too many accounts opened in the last two years not paid on time; average time accounts have been open is too short; and number of inquiries. [Id.].

It is not clear from the Chase letter whether Experian provided those factors to Chase as an explanation for the credit score it calculated for Plaintiff, or whether those are generally factors that can adversely affect one's credit score. There also is no indication in the record what Plaintiff's Experian credit file was showing as of May 3, 2021. But even viewing the facts in the light most favorable to Plaintiff, and assuming that Experian in May 2021 was still showing Plaintiff's First Franklin account as "on time/never late," current, and in good standing, Plaintiff has failed to show that having an account reported as being on time/never late and in good standing had a negative (or any) effect on his credit score, or that Chase used that as a factor in its decision not to grant Plaintiff's request to open an account there.

Notably, another factor cited by Chase was "too many accounts opened in the last two years not paid on time." [Id.]. Plaintiff

has failed to show or articulate how moving Plaintiff's one positive reported account "in good standing" to the status of account "not paid on time" and/or "discharged in bankruptcy" would have improved his credit score or positively impacted Chase's decision whether to grant Plaintiff's request to open an account. Coleman had ample opportunity to take discovery in this case and has failed to establish or point to any evidence in the record showing that Experian's alleged reporting that Plaintiff's First Franklin debt was in good standing was a factor that caused Chase (or any other creditor) to deny Plaintiff's request for credit or request to open an account. Even Plaintiff himself acknowledged that showing that an account is "in good standing" is a positive report, not a derogatory one, and that the best thing for one's credit is to have accounts reported that are in good standing. [Coleman Dep. at 61, 71]. See Enwonwu, 364 F. Supp. 2d at 1366 ("Based on these facts, ... the record does not support the inference that the inaccurate information on Plaintiff's TransUnion credit report was a substantial cause of Plaintiff's alleged injuries.").

Plaintiff has also failed to come forward with evidence sufficient to show a material fact dispute as to a causal connection between the allegedly inaccurate reporting of the First Franklin account and the denial of the car loan with Ally. [Doc. 96-12 at 5, Pl.'s Resp. to RFA No. 6]. At the time he applied for a car loan with Ally (in December 2020), Plaintiff's First Franklin account was the only debt reporting in good standing on his Experian credit disclosure. [Doc. 96-10]. Ally's representative attested in a sworn declaration that this reporting "would not be a factor that would cause someone to be denied credit by Ally when applying for a car loan." [Maynard Decl. ¶ 6]. Experian's 30(b)(6) witness testified similarly, stating, "[I]t's even common sense that an account that's in a positive status, open, never late, even with a balance, looks better to a potential lender than an account that has been included in bankruptcy." [30(b)(6) Methvin Dep. at 58].

Coleman relies on the Eleventh Circuit decision in Losch to argue that evidence of a "hard inquiry" alone is sufficient to show harm. I find that the Losch decision does not support Plaintiff's argument for four reasons. First, although Ally made a "hard inquiry" with Experian in connection with Plaintiff's credit application, the information Ally obtained was limited to a report from Clarity, an Experian affiliate, that did not include information about the First Franklin debt or other individual accounts. [Methvin Decl. ¶ 15; Maynard Decl. ¶ 5]. The Eleventh Circuit's assumption in Losch that hard inquiries listed on a consumer's credit report equate to the disclosure of a complete credit report that includes information about a contested tradeline, Losch, 995 F.3d at 943, is not appropriate here, given this evidence.

Second, the Losch Court made its assumption in the context of an Article III standing analysis, not on the merits. Losch, 995 F.3d at 942. Third, unlike Plaintiff, the consumer in Losch contacted Experian directly to dispute its reporting that he was delinquent on his mortgage when the mortgage had been included in his Chapter 7 bankruptcy and was discharged. Thus, in that case, Experian was put on notice that its reporting was inaccurate, triggering an obligation to investigate. Id. at 940. Here, it appears that Coleman "lay in wait," with no desire to correct the reporting and with the obvious goal of filing a lawsuit over the issue.

Finally, the erroneous reporting in Losch was negative; Experian was reporting that the account had a balance of almost $140,000, a past due amount totaling $10,006, and was more than 180 days late, when none of that was true. Id. By contrast,

the First Franklin debt in this case was reporting as open/never late and in good standing.

Plaintiff has pointed to no evidence in the record of any creditor or potential creditor who made hard inquiries into Plaintiff's credit file that either received information about Plaintiff's First Franklin debt or that denied credit because of it. Thus, Plaintiff's allegations of credit harm in this case attributable to Experian are not supported by any competent evidence.¹⁰

In failing to produce any probative evidence showing that Experian published inaccurate information about Plaintiff's First Franklin debt to any third party, and in failing to show a causal link between the allegedly inaccurate information and any credit denial, Plaintiff has failed to meet his burden. Enwonwu, 364 F. Supp. 2d at 1367 ("Plaintiff having produced evidence that credit granting agencies merely obtained his Trans Union credit report, this Court has no difficulty concluding that Plaintiff has failed to satisfy the causation element of his prima facie case"). Plaintiff has failed to satisfy his affirmative duty of coming forward with evidence supporting his claim that Experian's inaccurate report caused him harm. See id. at 1365 (citing Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1160-61 (11th Cir. 1991) (because plaintiff "utterly failed to produce any evidence tending to show that he was damaged as a result of an allegedly inaccurate credit report," the court did not reach the substance of plaintiff's FCRA claims)).

Where, like here, the plaintiff has failed to satisfy his duty to come forward with evidence supporting his claim that Experian's inaccurate report caused him harm, the Supreme Court has stated that Federal Rule of Civil Procedure 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. 2548.

In his brief opposing Experian's motion for summary judgment, Plaintiff fails to acknowledge the role that his poor credit history and Chapter 7 bankruptcy might have played in the denials of his requests for credit. Filing for bankruptcy can have a profound and lasting negative impact on a consumer's ability to obtain credit. See Jaras v. Equifax, Inc., 766 F. App'x 492, 494 (9th Cir. 2019) (affirming dismissal for lack of Article III standing where "Plaintiffs' bankruptcies themselves cause[d] them to have lower credit scores with or without the alleged misstatements"); accord Consumer Financial Protection Bureau, "How does a bankruptcy affect my credit score?" located at http://www.consumerfinance.gov/ask-cfpb/how-does-a-bankruptcy-affect-my-credit-score-en-1233/ (last visited Oct. 25, 2022) (observing that bankruptcies have a "very negative effect on your credit score" and will do so "for up to 10 years"); see also Enwonwu, 364 F. Supp. 2d at 1367 (granting summary judgment

for the CRA where "[i]n light of the indisputably accurate adverse information on Plaintiff's credit report, the inaccurate entry—a civil judgment in the amount of $6,639—appears immaterial," and finding that the alleged inaccurate entry in the credit report was not a substantial factor in bringing about the injuries allegedly suffered by the consumer).

The same is true here. Even assuming that the inaccurate information about Plaintiff's First Franklin account was reviewed and/or used by a potential creditor, "the Eleventh Circuit has held that evidence of utilization by the credit granting agency, without more, cannot support the inference of causation." Enwonwu, 364 F. Supp. 2d at 1366 (citing Cahlin, 936 F.2d at 1161). Moreover, given the other adverse information on Plaintiff's Experian credit report, including multiple delinquent debts that were discharged in bankruptcy and multiple hard inquiries, the alleged inaccurate but positive Experian entry concerning Plaintiff's First Franklin account cannot be considered a "substantial factor" in bringing about Plaintiff's alleged injuries. [Doc. 100-1 at 2-3; Doc. 96-10; Doc. 96-14 at 3-4; Doc. 97-1 at 2 (sealed)].

3. Insufficiency of Other Damages Evidence

Plaintiff has also failed to come forward with sufficient evidence from which a jury could find that Experian's reporting caused him any other damages. A plaintiff may recover actual damages for any negligent violation of the FCRA, including "damages for humiliation, mental distress or injury to reputation and creditworthiness," even if the plaintiff has suffered no out-of-pocket losses. See Smith v. E-Backgroundchecks.com, Inc., 81 F. Supp. 3d 1342, 1365 (N.D. Ga. 2015); 15 U.S.C. § 1681o(a). "Damages are an element of [an FCRA] claim, and without evidence of damages, summary judgment is appropriate." King v. Asset Acceptance, LLC, 452 F. Supp. 2d 1272, 1280 (N.D. Ga. 2006).

In his answers to interrogatories, Plaintiff stated that his "actual damages consist primarily of emotional distress." [Doc. 96-13 at 16, Resp. to Interrog. No. 13]. Plaintiff testified in his deposition that his decision to file bankruptcy caused him emotional distress, so much so that he had to start taking anti-depressants. [Coleman Dep. at 97]. He also testified to being distressed by his inability to secure credit following his bankruptcy:

Emotional distress, meaning I can't get credit. I lost my wife and my children behind it. Trying to get a house and can't get credit every time I try to apply for something. And being embarrassed going into stores, try to apply for credit and telling me I can't be accepted for credit.

[Id. at 96]. Plaintiff testified that after receiving his bankruptcy discharge, he felt like he was "still in the same situation" as he was before. [Id. at 100]. According to Plaintiff, no one told him that was going to be a consequence of filing bankruptcy—that it would be very hard to get credit afterwards—and he testified that if he had to do it all over again, he would not file for bankruptcy. [Id. at 90, 97-99].

As to Experian's alleged inaccurate reporting about Plaintiff's First Franklin account, however, Plaintiff testified that he did not review the credit reports he received from Experian and instead forwarded them to his lawyers; he "didn't pay no attention" to whether Experian was reporting anything inaccurately in his credit report. [Coleman Dep. at 69, 78-81, 83]. He testified that he was "not sure" if Experian's reporting the account as being "open/never late" and in good standing was something he was particularly concerned about. [Id. at 105]. He also testified he was "not sure" whether there was anything

incorrect about the way Experian reported his First Franklin account. [Id. at 64, 93]. He was also unsure whether he wanted the First Franklin account to report as discharged in bankruptcy rather than as an account in good standing. [Id. at 80]. Plaintiff further testified that his goal in filing this lawsuit was to get rid of all the bankruptcy notations and negative reporting on his credit report, which did not happen; his accounts are still showing as negative and discharged in bankruptcy on his credit report. [Id. at 92].

Plaintiff has submitted a declaration titled, "Declaration of Edward Coleman in Support of Plaintiff's Opposition to Defendant's Motion to Compel Arbitration [sic]" which he contends constitutes sufficient evidence of emotional distress to create an issue of material fact as to damages. [Doc. 102-10 at 2-5 ("Pl.'s Decl.")]. Plaintiff argues that in Losch, the Eleventh Circuit held that "a self-serving, uncorroborated, non-conclusory affidavit" of the plaintiff's emotional distress is sufficient to create an issue of material fact, and asserts that he has met that standard in this case. [Doc. 102 at 17]. In Losch, the Eleventh Circuit reaffirmed its en banc decision in United States v. Stein, 881 F.3d 853, 858-59 (11th Cir. 2018), in which the Court held that "[a] non-conclusory affidavit which complies with Rule 56 can create a genuine dispute concerning an issue of material fact, even if it self-serving and/or uncorroborated." Losch, 995 F.3d at 944.

Unsworn declarations under penalty of perjury like Plaintiff's, however, are required to be signed and dated, in accordance with 28 U.S.C. § 1746. Plaintiff's unsworn declaration under penalty of perjury is signed, but not dated, and thus does not comply with the statutory requirements governing such declarations. Courts have held that given the explicit language of the statute, such technically deficient unsworn affidavits submitted to show a genuine issue of material fact in the summary judgment context "must therefore be excluded from consideration." Bonds v. Cox, 20 F.3d 697, 702 (6th Cir. 1994); accord Lentz v. Spanky's Restaurant II, Inc., 491 F. Supp. 2d 663, 669-70 (N.D. Tex. 2007) (declining to consider undated affidavit by the plaintiff because it failed to comply with Rule 56(e) and 28 U.S.C. § 1746).

Even if the court were to consider Plaintiff's technically deficient declaration, it fails to establish actual damages for another independent reason: it is contrary to Plaintiff's sworn deposition testimony. Plaintiff's undated declaration now claims that he reviewed his credit reports and saw that Experian was reporting he still owed the debt to First Franklin, and that he felt confused, panicked, anxious, depressed, and embarrassed by the inaccurate reporting that he now says he saw. [Doc. 102-10 at 4-5]. He claims that Experian's reporting of the First Franklin account made the "negative feelings" he had when filing for bankruptcy "reemerge," and it raised questions in his mind about why his credit reports were showing that he still owed First Franklin money, when First Franklin had refused his payments because of the bankruptcy. [Id. ¶¶ 15, 20]. He now claims that he reviewed his Experian credit reports, "learned both Experian and TransUnion were reporting I still owed the debt to First Franklin," his review caused him to be "confused" and "panicked," and that it caused him to believe that Experian's inaccurate reporting of the First Franklin account was the cause of all his credit denials. [Id. ¶¶ 13-14].

Plaintiff's declaration is conclusory and directly contradicts his previous deposition testimony, making it insufficient to create a genuine issue of material fact under Rule 56. See Bell v. City of Auburn, Ala., 722 F.

App'x 898, 900 (11th Cir. 2018) (concluding that district court properly disregarded the plaintiff's sworn declaration because it was inherently inconsistent with his prior testimony, "and amounted to a transparent effort to create a genuine issue of fact."); Van T. Junkins and Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984) ("When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.").

At his deposition, Plaintiff testified that being behind on his debts and filing for bankruptcy were what caused him emotional distress, to lose his family, lose sleep, feel anxious, depressed, and embarrassed; he testified that the effects of the bankruptcy continue to this day because it is still difficult to get credit. [Coleman Dep. at 17-20, 99, 100]. He testified that he feels like he's in the same situation as before he filed for bankruptcy. [Id. at 100]. And as noted above, he had little or nothing to say about how the First Franklin account affected him. The undersigned declines to credit Plaintiff's undated and contradictory declaration.

Plaintiff has failed to point to any competent evidence tying any actual or emotional distress damages to Experian's publication of an inaccurate consumer report to a third party. Because Plaintiff's allegations of emotional distress lack evidentiary support other than his vague and contradictory assertions, he has failed to demonstrate a genuine dispute of material fact. To avoid summary judgment, "a scintilla of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because Plaintiff has failed to produce sufficient (or any) evidence of a causal connection and actual damage resulting from Experian's alleged negligent violation of Section 1681e(b), a reasonable jury would not award emotional distress or any other actual damages to Plaintiff. I therefore recommend that Experian's motion for summary judgment on Plaintiff's negligent violation claim be granted.

4. Summary

For the reasons discussed above, I conclude that Coleman has failed to come forward with evidence showing that he was harmed as a result of Experian's reporting of his First Franklin account. In the absence of actual damages, his 15 U.S.C. § 1681e(b) negligent violation claim fails as a matter of law.

B. 15 U.S.C. § 1681n(a)

Even if a plaintiff cannot show actual damages, he nevertheless may be entitled to statutory and/or punitive damages if he can show that the defendant willfully violated the FCRA. 15 U.S.C. § 1681n(a). To prove that Experian willfully failed to comply with Section 1681e(b), Plaintiff must establish that Experian either knowingly or recklessly violated that section. Pedro v. Equifax, Inc., 868 F.3d 1275, 1280 (11th Cir. 2017). A CRA recklessly violates the Act if it takes an action that "is not only a violation under a reasonable reading of the statute's terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless." Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 69, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). A CRA that adopts a reading of the FCRA that is "not objectively unreasonable" based on the text of the Act, judicial precedent, or guidance from administrative agencies "falls well short of raising the 'unjustifiably high risk' of violating the statute necessary for reckless

liability." Id. at 70, 127 S.Ct. 2201. A CRA that adopts an objectively reasonable reading of the Act does not knowingly violate the Act. Id. at 70 n.20, 127 S.Ct. 2201. "A violation isn't willful where a defendant 'followed an interpretation that could reasonably have found support in the courts....'" Losch, 995 F.3d at 947 (quoting Safeco, 551 U.S. at 70 n.20, 127 S.Ct. 2201).

Plaintiff claims that he is entitled to statutory and punitive damages because Experian willfully violated the FCRA. Plaintiff specifically asserts that Experian willfully failed to employ reasonable procedures because it knew that Plaintiff's debts were discharged in bankruptcy but failed to update its First Franklin report to indicate that the account was included in bankruptcy. Plaintiff also argues that at the time of the reporting in this case, Experian was involved in multiple lawsuits challenging the same procedures, and thus "knew or had reason to know of facts that would lead it to understand it was running an unjustifiably high risk of violating the statute—a condition sufficient to show 'actionable recklessness.'" [Doc. 102, Pl.'s Br., at 26]. Plaintiff argues that despite its knowledge, Experian chose not to update its procedures to scrub for balances despite having the means to do so with minimal effort. [Id., citing Deposition of Mukeshkumar Patel, Doc. 102-7 at 38-40].

Experian maintains that its procedures were authorized by, and in compliance with, the White Order. The record in this case appears to support Experian's position. It is undisputed that Experian's exclusion of Plaintiff's First Franklin account from its bankruptcy scrubs complied with the procedures set forth in the White Order. [PSAF ¶ 24]. Although Plaintiff argues that his unscheduled pre-petition debt with First Franklin was discharged in bankruptcy by operation of law, the First Franklin tradeline fell into a narrow category of debts identified in the White Order to be excluded from the required bankruptcy scrub(s)—i.e., accounts reporting as open and with a current status (meaning "an account status or rating indicating that, as of the date of last reporting, there is no outstanding, overdue, and delinquent balance currently due"). [White Order, ¶¶ 2.10, 3.2(b)(ii)(E); Methvin Decl. ¶ 10]. The White court determined that the procedures in the White Order "are reasonable procedures to assure the maximum possible accuracy of [Experian's] reporting of credit information regarding Consumers who have received a discharge pursuant to Chapter 7 of the United States Bankruptcy Code," and stated that the procedures "are conclusively deemed to comply with the FCRA, including but not limited to Section 1681e(b) of that Act." 2008 WL 11518799, at *14 (White Order ¶ 5.4); see also Benjamin, 561 F. Supp. 3d at 1344.

The White Order further provides:

This Order shall preclude all future litigation or attempted litigation under the FCRA ... regarding the reasonableness of Defendants' post-discharge reporting of Consumer credit information relating to pre-bankruptcy debts or civil judgments, as well as the reasonableness of Defendants' procedures for reinvestigations of Consumer disputes regarding the same, brought by any and all Consumers receiving bankruptcy discharges after the date of this Order. Consumers hereby are precluded from contending, absent a fundamental change in circumstance, that the procedures set forth in this Order are not reasonably designed to assure maximum possible accuracy under Section 1681e(b) ....

[White Order ¶ 5.6]. Because Plaintiff was not part of the plaintiff class in White, however, the White Order is not binding on this Court. Benjamin, 561 F. Supp. 3d at 1344 ("White is not binding on this

Court and does not necessitate that this Court find in this case that Experian's procedures complied with the FCRA") (citing Morris v. Experian Info. Sols., Inc., 478 F. Supp. 3d 765, 771 (D. Minn. Aug. 13, 2020) ("That a report complies with the White settlement does not by itself establish that the report complies with § 1681e(b), however. After all, White is not binding on this Court.")).

Although the evidence shows that sometime after this lawsuit was filed, Experian made some changes to its bankruptcy scrub procedures and modified the dates of its look-back scrub so as to be more in line with the way TransUnion and Equifax were applying their scrub procedures, Coleman has presented no evidence that his First Franklin tradeline would have been treated any differently even under the newer scrub procedures. [Doc. 51-3, Kimberly Cave Decl., ¶¶ 5-6, 9; Doc. 74 at 2 n.1; Doc. 74-6 ¶¶ 9-10].

As noted above, the fact that Experian's reporting procedures at issue in this lawsuit were consistent with those approved of in White does not by itself establish that its reporting complied with Section 1681e(b) because White is not binding on this Court. Nevertheless, as Judge Story ruled in Benjamin, "Experian's implementation of procedures that were consistent with those approved of in White does support the conclusion, as a matter of law, that Experian did not knowingly or recklessly violate the FCRA." Benjamin, 561 F. Supp. 3d at 1344. Other courts that recently considered this same question have reached the same conclusion. See, e.g., Beers v. Experian Info. Sols., Inc., No. 20-cv-1797-WMW-JFD, 2022 WL 891620, at *4-5 (D. Minn. Mar. 25, 2022) ("Beers has not identified, and the Court's research has not found, any applicable legal authority suggesting that the procedures Experian used here for reporting Chapter 7 bankruptcies willfully violate the FCRA.") (italics in original); Peterson v. Experian Info. Sols., Inc., No. 20-cv-00606-DSD-ECW, 2021 WL 3116073, at *4 (D. Minn. July 21, 2021) ("Experian's reliance on the procedures approved in White establishes that Experian's reporting was not willful or reckless."); Lockett v. Experian Info. Sols., Inc., No. 1:20-cv-1427-ELR-JCF, 2021 WL 4815896, at *5 (N.D. Ga. Jan. 4, 2021) (Report and Recommendation withdrawn upon filing of amended complaint).

Plaintiff has not provided any evidence suggesting that Experian's procedures as they existed at the time Plaintiff filed his lawsuit were a reckless or knowing violation of the law. I agree with Judge Story and Experian that its reliance on the White Order "effectively forecloses that claim, as it relied on an interpretation of Section 1681e(b) that a federal court approved." Benjamin, 561 F. Supp. 3d at 1361.

Based on the cited authority and for the reasons stated, I conclude that Experian's motion for summary judgment as to Plaintiff's claim for willful violation of Section 1681e(b) of the FCRA should be granted.

IV. CONCLUSION

For the reasons discussed above, I RECOMMEND that Experian's motion for summary judgment [Doc. 96] be GRANTED.

IT IS SO RECOMMENDED, this 9th day of November, 2022.