Opinion
C. A 2:23-cv-00029-BHH-MHC
07-18-2024
Raven Gadson, Plaintiff, v. Experian Information Solutions, Inc., Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff Raven Gadson (“Plaintiff” or “Gadson”), proceeding pro se, brings this action alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”).
Presently before the Court is a Motion for Summary Judgment, ECF No. 66 (“Motion”), filed by Defendant Experian Information Solutions, Inc. (“Defendant” or “Experian”) pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Response in Opposition to the Motion. ECF No. 70. The Motion is ripe for review.
This Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends that the Motion be granted.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2), D.S.C.
BACKGROUND
A. The FCRA Framework
The FCRA seeks to “ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007) (citing 15 U.S.C. § 1681). The FCRA “regulates the creation and the use of ‘consumer report[s]' by ‘consumer reporting agenc[ies]' for certain specified purposes, including credit transactions[.]” Spokeo v. Robins, 578 U.S. 330, 334-35 (2016) (citing 15 U.S.C. §§ 1681a(d)(1)(A)-(C) and 1681b) (footnotes omitted). “To achieve its purpose, the FCRA places distinct obligations on three types of entities: consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies.” Chipka v. Bank of America, 355 Fed.Appx. 380, 382 (11th Cir. 2009) (citing 15 U.S.C. §§ 1681b, 1681m, and 1681s-2); see Branch v. Fed. Home Loan Mortg., No. 5:04-CV-859-BO, 2005 WL 8159344, at *3 (E.D. N.C. July 28, 2005).
The FCRA defines a consumer reporting agency as
any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.5 U.S.C. § 1681a(f). Although the FCRA does not define “furnisher” of information, “the term is understood as including any entity . . . that provides information about its customers to [consumer reporting agencies], including information about a customer's payments on their accounts.” Saunders v. Equifax Info. Servs., L.L.C., No. 3:05 CV 731, 2006 WL 2850647, at *1 (E.D. Va. Oct. 3, 2006), aff'd sub nom. Saunders v. Branch Banking & Tr. Co. of VA, 526 F.3d 142 (4th Cir. 2008).
“The term ‘consumer report' means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living 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 (A) credit or insurance . . .; (B) employment purposes; or (C) and other purpose authorized under section 1681b of this title.” 15 U.S.C. § 1681a(d)(1).
B. Experian's Business as a Consumer Reporting Agency
Experian is a “consumer reporting agency” as defined by the FCRA. See Iwanski Decl., ECF No. 67-2 at 3 ¶ 7. Experian does not originate or create any credit information. Id. at 3 ¶ 8. Rather, Experian stores data supplied by credit grantors and public record vendors, also called “furnishers.” Id. Furnishers report “tradelines” to Experian, which generally consist of data relating to individual credit accounts such as account number, status, and balance. Id. This data also includes certain identifying information that is used to match particular accounts to the appropriate consumer. Id. Experian provides a consumer's credit information upon request to the consumer or to subscribers authorized by law to receive it, like a credit grantor for the purpose of evaluating the consumer's credit. Id. at 3 ¶ 9.
C. Experian's Policies and Procedures for Maintaining Maximum Possible Accuracy
A representative for Experian avers that the company has expended, and continues to expend, significant time and resources to research and develop reasonable procedures to assure maximum possible accuracy in all aspects of its consumer credit reporting business. Id. at 3 ¶ 10. Experian has implemented procedures to govern its entire process of handling consumer credit information. Id. Experian accepts credit information only from furnishers that have been vetted through Experian's stringent membership process. Id. at 3-4 ¶ 11. Experian utilizes procedures designed to verify the reliability of the furnishers, including on-site inspections, audits of furnishers' credit data, and a requirement that furnishers certify they will comply with the FCRA and Experian's policies and provide only accurate information. Id. Incoming credit data is also subject to rigorous manual and automated quality control and statutory compliance procedures. Id. at 4 ¶ 12. For example, incoming data is analyzed for unusual trends and aberrations that might suggest reporting errors, and data supplied by individual furnishers is periodically audited to a ensure that the data complies with Experian's policies and the FCRA. Id. Experian also employs other safeguards, including continually reviewing and refining its computer systems to assure data accuracy. Id.
Data furnishers routinely update the data they report to Experian through a normal monthly reporting process. Id. at 4 ¶ 13. Data furnishers may also request Experian to update their reporting outside of that normal process. To do so, data furnishers may submit Automated Universal Data Forms (“AUDs”) to Experian. Id. Submission of an AUD constitutes a request for Experian to change reporting on the relevant tradeline(s) as identified in the AUD. Id.
D. Experian's Policies and Procedures for Handling Consumer Disputes
Experian provides consumers with secure access to their credit information and multiple means to dispute items in their credit files. Id. at 4 ¶ 15. Consumers can initiate a dispute free of charge by telephone, by mail, by visiting Experian's secure website, or through the Consumer Financial Protection Bureau. Id.
Upon receiving notice of a dispute from a consumer, Experian initiates its “reinvestigation” process. Id. at 4-5 ¶ 16. As part of that process, Experian reviews all relevant information provided by the consumer and uses it, if possible, to verify the identity of the consumer, to identify the item(s) being disputed, and to determine the nature of any alleged inaccuracies. Id. When Experian receives a bona fide dispute from a consumer regarding a possible inaccuracy in that consumer's credit file, Experian generally proceeds by contacting the furnisher who was the source of the disputed information, describing the nature of the dispute, and requesting a response from the furnisher. Id. at 5 ¶ 17. This is normally done by Experian electronically sending an Automated Consumer Dispute Verification (“ACDV”) to the furnisher. Id. An ACDV identifies the consumer and account involved, describes the basis for the dispute, and requests that the furnisher respond by verifying or modifying the credit information as appropriate. Id. at 5 ¶ 18. The furnisher then returns the ACDV to Experian, and based upon the furnisher's own investigation, requests that Experian either leave the disputed credit information as is, delete it, or change it in some specified manner. Id.
Experian does not issue a judgment regarding the validity of the consumer's dispute, nor does Experian deny or render a “denial” of a consumer's dispute letter. Id. Experian acts in accordance with the furnisher's response and its own internal procedures, and Experian then sends the consumer a summary reflecting the results of the reinvestigation. Id. at 5 ¶ 19. The summary contains a statement describing the options available should the consumer disagree with the results of the reinvestigation. Id. Those options include contacting the furnisher of the disputed information directly and adding a statement to the consumer's credit file disputing the accuracy or completeness of the account at issue. Id.
Experian does not have access to furnishers' records. Id. at 5-6 ¶ 20. When an ACDV either (1) is not timely returned, (2) does not verify the reported information, or (3) contains information that Experian determines renders the response unreliable, the disputed information is removed from the consumer's credit file or updated as requested by the consumer. Id. Experian is unable to determine the reasons a consumer disagrees with information that Experian is reporting unless the consumer specifically identifies the credit information being disputed and explains why he or she is disputing that information. Id. at 6 ¶ 21.
E. Plaintiff's December 19, 2022, Dispute to Experian
In Plaintiff's operative Amended Complaint, ECF No. 33, Plaintiff alleges that in or around November 2022 she “checked her credit reports” and “found inaccuracies” with four credit accounts she maintained with Capital One, Capital One Auto Finance, JPMorgan Chase, and Discover Financial Services (the “Disputed Accounts”). ECF No. 33 at ¶ 2. Plaintiff alleges that the inaccuracies “consisted of inaccurate late payments, inaccurate and incomplete payment history, no date of first delinquency, inaccurate account type, incorrect balance reporting, omission of high credit amounts, [and] no reporting of date of last activity.” Id. at ¶ 3.
On or around December 19, 2022, Plaintiff sent a dispute to Experian relating to the Disputed Accounts (“Plaintiff's Dispute”):
The following accounts are inaccurate and incomplete. These accounts are damaging to me and must be deleted from my credit report. I please ask that you reinvestigate and delete the accounts from my file:
Capital One 517805XXXXXX
Capital One Auto Finan 620881XXXXXXXXXXX
DISCOVER BANK 601100XXXXXX
JPMCB CARD 414740XXXXXX
I am requesting a description of the procedure used to determine the accuracy and completeness of the information as well as the identity of the person who verified the information including the business name and address of any furnisher contacted in connection with such information and telephone number if reasonably available.ECF No. 67-2 at 10; see also id. at 6 ¶¶ 22-23. Although Plaintiff alleged that each of the Disputed Accounts was “inaccurate and incomplete,” she provided no factual basis or documentation supporting those assertions. Id. Plaintiff testified that Plaintiff's Dispute is the only dispute at issue in this litigation. See Pl. Dep., 61:18-23, ECF No. 67-1.
Upon receipt of Plaintiff's Dispute, Experian reinvestigated the Disputed Accounts identified by Plaintiff. ECF No. 67-2 at 6 ¶ 24. As a part of its reinvestigation, Experian sent an ACDV form along with a copy of Plaintiff's correspondence separately to Capital One, Capital One Auto Finance, JPMorgan Chase, and Discover Financial Services. Id. at 6 ¶ 25. Each of these furnishers of information responded to the respective ACDVs sent by Experian, each updating certain account information and verifying the reported status of their respective accounts as accurate. Id. at 6 ¶ 2; id. at 16-19.
Experian sent a consumer disclosure informing Plaintiff of the results of Experian's reinvestigation on January 6, 2023. Id. at 6 ¶ 27; id. at 21-30. Experian's representative avers that “any discrepancies identified by Plaintiff between data provided by Capital One, Capital One Auto Finance, JPMorgan Chase, or Discover Financial Services in their respective ACDV responses and Plaintiff's January 6, 2023 consumer disclosure relate only to post-ACDV-response routine monthly reporting updates or AUDs changing any such reporting by the furnishers.” Id. at 7 ¶ 28. The representative further avers that this is “not uncommon in situations like this where a consumer is disputing multiple accounts at the same time, and different furnishers respond to the ACDVs sent by Experian at different times.” Id. The representative avers that Experian processed Plaintiff's Dispute in accordance with the policies and procedures set forth above. Id. at 7, ¶ 29.
F. Plaintiff's Deposition and Declaration Testimony
At her deposition, Plaintiff acknowledged that Experian “completed its investigation” into Plaintiff's Dispute and thereafter sent dispute results to Plaintiff. ECF No. 67-1 at 63:3-12, 78:49. Plaintiff testified that she had not taken a deposition of Experian and had no knowledge of whether Experian's reinvestigation into her dispute was reasonable, “outside of [the] opinions that I've formed.” Id. at 81:25-82:6. She testified that she does not have any personal knowledge, outside of her own “thoughts” and “feel[ings],” into how Experian investigated her dispute, id. at 76:17-23, or what would have been a reasonable procedure for Experian to follow in processing her December 2022 dispute, id. at 80:3-81:8.
Plaintiff averred in her declaration that she “submitted a dispute to Experian calling [in]to question the completeness and accuracy of accounts within [her] consumer report in December 2022.” ECF No. 70-1, Pl. Decl. at 1. She further averred that Experian “processed” her dispute, but she “contends that their reinvestigation process was insufficient and did not adequately address the inaccuracies in [her] credit report.” Id. She avers that “discrepancies remained between Experian's report and the information provided by [her] creditors,” but she does not identify what those discrepancies were. Id. She avers that she was denied a mortgage loan from SoFi in 2023 and that the denial letter “specifically cited issues only from [her] Experian credit report as reasons for the denial.” Id.; see also ECF No. 70-4 (SoFi Adverse Action Notice). She avers that the inaccuracies in her credit report and the subsequent mortgage denial have caused her “significant emotional distress and financial harm.” ECF No. 70-1, Pl. Decl. at 1.
LEGAL STANDARD
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
DISCUSSION
In her Second Amended Complaint, Plaintiff alleges that Experian negligently and willfully violated the FCRA by (i) failing to follow reasonable procedures to assure the maximum possible accuracy of Plaintiff's consumer file pursuant to 15 U.S.C. § 1681e(b) (“Count I”); (ii) failing to conduct a reasonable reinvestigation of Plaintiff's disputes pursuant to 15 U.S.C. § 1681i(a)(1) (“Count II”); (iii) “failing to provide third parties . . . with information regarding [Plaintiff's] disputes” pursuant to § 1681i(a)(2)(A) (“Count III”); (iv) “failing to consider all relevant information submitted” by Plaintiff pursuant to § 1681i(a)(4) (“Count IV”); and (v) “failing to either promptly delete the disputed inaccurate items of information from [Plaintiff's] credit file or modify the items of information upon accurate reinvestigation,” pursuant to § 1681i(a)(5)(A) (“Count V”). See ECF No. 33 at ¶¶ 40-70.
Defendant moves for summary judgment on all of Plaintiff's claims. ECF No. 66. Defendant first argues that all of Plaintiff's claims fail as a matter of law because Plaintiff cannot prove that there was some inaccuracy or falsity with respect to Experian's reporting of the Disputed Accounts. ECF No. 67 at 16-18. Defendant also contends that Plaintiff's § 1681e(b) claim fails because Plaintiff has not produced evidence to rebut Defendant's demonstration that its procedure and reinvestigation into her Dispute were reasonable. Id. at 18-20. Defendant further argues that Plaintiff has failed to present sufficient evidence to establish her § 1681i(a) claims. Id. at 20-22. Finally, Defendant contends that Plaintiff has no evidence of cognizable damages. Id. at 22-29.
I. Plaintiff's Claim for Violation of § 1681e(b)
In Count I, Plaintiff asserts a violation of 15 U.S.C. § 1681e(b) for failure to follow reasonable procedures to assure the maximum possible accuracy of Plaintiff's consumer report. Section 1681e(b) provides 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 about whom the report relates.” 15 U.S.C. § 1681e(b). Thus, “a consumer reporting agency violates § 1681e(b) if (1) the consumer report contains inaccurate information and (2) the reporting agency did not follow reasonable procedures to assure maximum possible accuracy.” Dalton v. Cap. Associated Indus., Inc., 257 F.3d 409, 415 (4th Cir. 2001). Accordingly, “[t]o make out a violation under § 1681e(b), a consumer must [first] present evidence tending to show that a credit reporting agency prepared a report containing inaccurate information.” Id. (citations and internal quotation marks omitted).
A. Plaintiff has not shown her consumer report contained inaccurate information.
Viewing the evidence in the light most favorable to Plaintiff, the undersigned finds Plaintiff has not presented evidence showing that Defendant prepared a report containing inaccurate information. “A report is inaccurate when it is patently incorrect or when it is misleading in such a way and to such an extent that it can be expected to have an adverse effect.” Id. (citation and internal quotation marks omitted). Although Plaintiff makes conclusory allegations in her Amended Complaint about purported inaccuracies in the reporting of the Disputed Accounts, see ECF No. 33 at ¶ 3, she has failed to support those allegations with any evidence. Plaintiff has not produced any documentation such as bank records or statements that show how and when payments were made, if at all, or that otherwise show inaccuracies in the reported account information for the Disputed Accounts.
In her Response to Defendant's Motion, Plaintiff argues that Defendant “failed to ensure ‘maximum possibly accuracy' in its reporting, as required by 15 U.S.C. § 1681e(b).” ECF No. 70 at 12. She appears to assert that the consumer report's information regarding the date of first delinquency (“DOFD”) for the Discover and JPMCB accounts was inaccurate. Id. at 4, 12. She contends that “there is a clear inconsistency in the DOFD between Experian's report and the furnishers' records.” Id. at 4. However, Plaintiff does not identify with any particularity what the inconsistencies are, and a review of the evidence in the record does not reveal any inconsistencies. Rather, it appears that before Plaintiff's Dispute, Experian reported that the Discover account was 30 days past due as of October 2021, ECF No. 67-2 at 24, and the furnisher confirmed that the date the account was last paid was August 16, 2021, and that the original delinquency date was September 15, 2021, Id. at 18. Likewise, it appears that before Plaintiff's Dispute, Experian reported that the JPMCB account was 30 days past due as of October 2021, Id. at 23, and the furnisher confirmed that the date the account was last paid was August 9, 2021, and that the original delinquency date was October 11, 2021, Id. at 19. Plaintiff does not produce any evidence that she did, in fact, make any payments on these accounts after August 2021, such that this information appears to be accurate.
In her Response, Plaintiff questions the reliability of her consumer report based on Defendant's response to two Requests for Admission she propounded during discovery. ECF No. 70 at 3, 13.
Plaintiff attaches to her Response “Exhibit A,” which appears to be pages two through four of a sixteen-page credit report dated May 19, 2023, including hand-written notations. ECF No. 70-2. Plaintiff also attaches Defendants' responses to two sets of Requests for Admissions asking about Exhibit A. See ECF No. 70-3. In one set, Defendant denied the following Request: “Admit that the attached document Exhibit A is a true copy of the plaintiff[']s credit report prepared by defendant Experian after December 2022.” Id. at 4 (Request No. 2). In the second set, Defendant denied the following Request: “Admit that Exhibit A, minus plaintiff[']s notes/markings[,] is a copy of Plaintiff[']s Credit Report mailed by Experian.” In her Response, Plaintiff argues that Defendant's “assertion that the provided credit report is not a ‘true' one strikes at the very heart of their verification claims [because if] the report is not genuine, then the platform upon which they claim to have verified information becomes inherently unstable.” ECF No. 70 at 3. The undersigned is not persuaded by Plaintiff's argument. Based on the face of Exhibit A, it appears that Exhibit A contains only three pages (pages 2, 3, and 4) of a sixteen-page document, such that it does not appear to be a “true copy” or even a “copy” of her credit report. At best, it is a brief excerpt of her credit report, but that is not what Plaintiff asked Defendant to admit.
To be sure, there is no line on the Experian consumer report expressly stating the DOFD for each account. However, to the extent Plaintiff is asserting that Defendant should have identified on the consumer report the DOFD for each account, Plaintiff has not pointed to any law requiring Defendant to expressly include that information in the report, nor has she shown that its omission makes the report “patently incorrect” or “misleading in such a way and to such an extent that it can be expected to have an adverse effect,” particularly where the reported payment history is correct. See Dalton, 257 F.3d at 415.
Plaintiff has not pointed to any evidence tending to show that information in the disputed consumer report was “patently incorrect” or “misleading in such a way and to such an extent that it [could] be expected to have an adverse effect.” See Id. Accordingly, summary judgment for Defendant on Count I is appropriate on this basis alone.
B. Plaintiff has not shown Defendant failed to follow reasonable procedures.
Moreover, Plaintiff has also failed to produce evidence sufficient to establish the second prong of her § 1681e(b)-i.e., that Defendant “did not follow reasonable procedures to assure maximum possible accuracy.” See Dalton, 257 F.3d at 415. In Dalton, the Fourth Circuit held “that the plaintiff bears the burden under § 1681e(b) to show that the consumer reporting agency did not follow reasonable procedures.” Id. at 416.
“While the ‘reasonableness' of a [consumer reporting agency's] procedures is ordinarily a question of fact, the implementing regulations for the FCRA clarify that a [consumer reporting agency] follows reasonable procedures if it relies on information from a reputable source unless it has some notice of systemic problems with the accuracy of its reports,” “the information furnished appears implausible or inconsistent,” or there have been “numerous problems regarding information from a particular source.” Jianqing Wu v. Trans Union, No. CIVA AW-03-1290, 2006 WL 4729755, at *6-7 (D. Md. May 2, 2006) (citing Commentary on the Fair Credit Reporting Act, 16 C.F.R. pt. 600 app.), aff'd sub nom. Jianqing Wu v. Equifax, 219 Fed.Appx. 320 (4th Cir. 2007). “By carving out a defense for liability under § 1681e(b) for a [consumer reporting agency] that follows ‘reasonable procedures,' Congress manifested its intent not to make [consumer reporting agencies] strictly liable for any inaccuracy on a consumer credit report.” Id.
Here, Defendant has provided detailed statements of its procedures for ensuring the maximum possible accuracy of consumer credit files, and Plaintiff has not provided any evidence materially disputing Defendant's statements. ECF No. 67-2, at 3-6 ¶¶ 10-21. For instance, the undisputed evidence shows that Defendant accepts credit information only from furnishers that have been vetted through Defendant's membership process. Id. at 3-4 ¶ 11. Among the procedures Defendant uses to verify the reliability of the furnishers are on-site inspections, audits of furnishers' credit data, and a requirement that furnishers certify they will comply with the FCRA and Defendant's policies and provide only accurate information. Id. Additionally, incoming credit data is subject to rigorous manual and automated quality control and statutory compliance procedures. Id. at 4 ¶ 12 (further showing, among other things, that incoming data is analyzed for unusual trends and aberrations that might suggest reporting errors and that data supplied by individual furnishers is periodically audited to ensure that the data complies with Defendant's policies and the FCRA).
Plaintiff has not produced any evidence indicating that Defendant did not follow the procedures outlined above, that Defendant was on notice of systemic problems with its procedures or the accuracy of the information received from any of the furnishers of the Disputed Accounts, that any of those furnishers should not have been considered “reputable sources,” or that the information furnished appeared implausible or inconsistent. See Jianqing Wu, 2006 WL 4729755, at *6-7. On this record, Plaintiff simply has not created a genuine dispute of material fact as to whether Defendant followed reasonable procedures to assure maximum possible accuracy. Accordingly, Defendant is entitled to summary judgment as to Count I on this separate, independent basis. See Id. at *7 (granting summary judgment for defendant consumer reporting agency on § 1681e(b) claim upon finding that defendant implemented reasonable procedures for collecting and reporting consumer data); see also Sarver v. Experian Info. Sols., 390 F.3d 969, 973 (7th Cir. 2004) (affirming summary judgment for defendant on § 1681e(b) claim upon finding that “there is nothing in this record to show that [the consumer reporting agency's] procedures are unreasonable”).
II. Plaintiff's Claims for Violations of § 1681i(a)
Plaintiff's remaining claims, Counts II through V, assert violations of various subsections of 15 U.S.C. § 1681i(a), alleging that Defendant did not fulfill its obligations to conduct a reasonable reinvestigation of Plaintiff's Dispute. See ECF No. 33 (alleging violation of § 1681i(a)(1), (2)(A), (4), and (5)(A)).
“Section 1681i of the FCRA outlines the procedure to be followed in cases in which consumers dispute the completeness or accuracy of information contained in their file.” Spitzer v. Trans Union LLC, 140 F.Supp.2d 562, 565 (E.D. N.C. 2000), aff'd, 3 Fed.Appx. 54 (4th Cir. 2001). Specifically, § 1681i(a) provides that,
if the completeness or accuracy of any item of information contained in a consumer's file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly . . . of such dispute, the agency shall . . . conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file ....15 U.S.C. § 1681i(a)(1)(A).
“[T]o succeed on claims under § 1681i(a), a plaintiff must make a threshold showing of inaccuracy.” Dawkins v. Experian Info. Sols., Inc., No. 622CV00774TMCJDA, 2022 WL 17668425, at *6 (D.S.C. Oct. 19, 2022) (quoting Alston v. Equifax Info. Servs., LLC, No. TDC-13-cv-1230, 2016 WL 5231708, at *10 (D. Md. Sept. 21, 2016)), report and recommendation adopted, No. 6:22-CV-774-TMC, 2022 WL 17351761 (D.S.C. Dec. 1, 2022); Myrick v. Equifax Info. Servs., LLC, No. 5:15-CV-00562-BR, 2017 WL 3324467, at *5 (E.D. N.C. Aug. 3, 2017) (“To prevail on a § 1681i(a) claim, a plaintiff must show: (1) he disputed the accuracy of an item in his credit file; (2) the [consumer reporting agency] failed to conduct a reasonable reinvestigation; and (3) a reasonable reinvestigation could have uncovered the inaccuracy.”), on reconsideration, No. 5:15-CV-00562-BR, 2017 WL 4798154 (E.D. N.C. Oct. 24, 2017).
As explained above, Plaintiff has not produced sufficient evidence to establish that Defendant prepared a report containing inaccurate information. See § I, supra. Therefore, the undersigned agrees with Defendant that Plaintiff has failed to make a threshold showing of inaccuracy, such that Plaintiff cannot establish any of her remaining claims under § 1681i(a)(1). Accordingly, summary judgment on Counts II through V can be granted to Defendant on this basis alone. Nonetheless, as explained below, each claim fails for additional, independent reasons.
A. Count II - Violation of § 1681i(a)(1)(A)
In Count II, Plaintiff alleges that Defendant violated § 1681i(a)(1)(A) “by failing to conduct a reasonable investigation.” ECF No. 33 ¶¶ 41-42 (further alleging that Defendant “conducted either no investigation or failed to conduct a reasonable investigation”). However, Plaintiff admitted in her Amended Complaint and at her deposition that Experian “completed its investigation” into Plaintiff's Dispute and thereafter sent dispute results to Plaintiff. See ECF No. 33 at ¶¶ 5-6; ECF No. 67-1 at 63:3-12, 78:4-9. Thus, for Plaintiff to prevail on this claim, in addition to showing that the disputed report contained inaccurate information-which, as stated above, Plaintiff has not shown-Plaintiff must also produce evidence sufficient to show that Defendant's reinvestigation was unreasonable.
Defendant produced evidence from which a jury could conclude that Defendant conducted a reasonable reinvestigation into of each of the Disputed Accounts. ECF No. 67-2 at 6-7 ¶¶ 2229. Specifically, Defendant produced evidence showing that upon receipt of Plaintiff's Dispute, Defendant sent an ACDV form along with a copy of Plaintiff's correspondence separately to Capital One, Capital One Auto Finance, JPMorgan Chase, and Discover Financial Services. Id. at 6 ¶ 25. The evidence further shows that each of these furnishers of information responded to the respective ACDVs sent by Defendant, each updating certain account information and verifying the reported status of their respective accounts as accurate. Id. at 6 ¶ 2; Id. at 16-19. Defendant then sent a consumer disclosure informing Plaintiff of the results of Defendant's reinvestigation on January 6, 2023. Id. at 6 ¶ 27; Id. at 21-30.
At her deposition, Plaintiff testified that she has no knowledge as to whether Experian's reinvestigation into her dispute was reasonable, “outside of [the] opinions that I've formed.” Id. at 81:25-82:6. In her Response, Plaintiff contends:
When the plaintiff disputed the completeness and accuracy of specific accounts on [Plaintiff's] credit report, Experian failed to conduct a thorough and reasonable reinvestigation. Experian relied solely on Automated Consumer Dispute Verifications (ACDVs) without seeking additional verification or evidence from furnishers or providing evidence substantiating their chosen reporting of the accounts, particularly when discrepancies arose in the Date of First Delinquency (DOFD) and payment history even with the additional documentation provided by the consumer as seen in the Plaintiff[']s amended complaint.ECF No. 70 at 11.
Plaintiff appears to be referencing images that she embedded into her Amended Complaint, filed on May 19, 2023, which purport to show brief excerpts of documents related to her Experian report and, perhaps, purchases with or payments to her Capital One account. See ECF NO. 33 at 3-7. The undersigned notes that the Amended Complaint is not verified, and none of the actual documents appear in the summary judgment record. Moreover, there is no evidence in the record that Plaintiff provided to Defendant any payment history or documentation during the pendency of Plaintiff's Dispute. Rather, the undisputed evidence shows that Plaintiff merely identified the four Disputed Accounts and stated, “[These] accounts are inaccurate and incomplete. These accounts are damaging to me and must be deleted from my credit report. I please ask that you reinvestigate and delete the accounts from my file.” ECF No. 67-2 at 10.
Plaintiff argues that “Experian's reinvestigation process [and] omission of account-level documentation, witness or any tangible evidence beyond a[n] ACDV[] presents a disputed material fact.” Id. at 7. She contends that “[w]hile the use of ACDV systems can be a part of the reinvestigation process, reliance solely on automated processes without human review may not fulfill the ‘reasonableness' standard set by the FCRA.” Id. Plaintiff cites Cushman v. Trans Union Corp., 115 F.3d 220 (3rd Cir. 1997), for the proposition that “credit reporting agencies (CRAs) are required to go beyond the original source, especially when there is reasonable grounds to doubt the veracity or completeness of the furnished information.” Id. at 1.
Although Cushman held that a consumer reporting agency may need to go beyond the original source during a reinvestigation, it did not find that such a step was always required:
We hold that in order to fulfill its obligation under § 1681i(a) “a credit reporting agency may be required, in certain circumstances, to verify the accuracy of its initial source of information.” Henson [v. CSC Credit Servs., 29 F.3d 280, 287 (7th Cir. 1994)]. We further hold that “[w]hether the credit reporting agency has a duty to go beyond the original source will depend” on a number of factors. Id. One of these is “whether the consumer has alerted the reporting agency to the possibility that the source may be unreliable or the reporting agency itself knows or should know that the source is unreliable.” Id. A second factor is “the cost of verifying the accuracy of the source versus the possible harm inaccurately reported information may cause the consumer.” Id. Whatever considerations exist, it is for “the trier of fact [to] weigh the[se] factors in deciding whether [the defendant] violated the provisions of section 1681i.”115 F.3d at 225-26 (quoting Henson v. CSC Credit Servs., 29 F.3d 280, 287 (7th Cir. 1994)). However, courts in the Fourth Circuit have found that “[a]lthough judging the reasonableness of a CRA's reinvestigation is normally within the province of the fact-finder, summary judgment may be appropriate where a plaintiff has failed to adduce evidence that would tend to prove that CRA's reinvestigation was unreasonable.” Jianqing Wu, 2006 WL 4729755, at *8 (citing Spitzer, 140 F.Supp.2d at 566 (holding that a consumer reporting agency did not violate 15 U.S.C. § 1681i as matter of law)); see Letren v. Trans Union, LLC, No. CV PX 15-3361, 2017 WL 445237, at *11 (D. Md. Feb. 2, 2017) (same).
In Jianqing Wu, the court addressed the issue of reasonable reinvestigation at the summary judgment stage. 2006 WL 4729755, at *8. As Experian did in this case, the defendant credit reporting agency in Jianqing Wu verified each disputed item by sending customer dispute verification forms to each creditor and then updating the plaintiff's credit file based on the responses to the requests. Id. The plaintiff argued that the defendant “did not consider all relevant information because it did not delete all the items he disputed,” and he claimed that the reinvestigation was not reasonably because the agency “did not make its own determination on the basis of the correspondences and documents that Plaintiff had provided.” Id. at *8-9. The Court rejected these arguments, finding that “[d]efendant's reliance upon [p]laintiff's creditors' investigations of [p]laintiff's accounts in this case was reasonable” and concluding that the defendant “discharged its duty to perform a reasonable reinvestigation.” Id. The Fourth Circuit affirmed the grant of summary judgment. Jianqing Wu v. Equifax, 219 Fed.Appx. 320 (4th Cir. 2007).
Similarly, the Letren court found that summary judgment was appropriate where the consumer reporting agency provided the plaintiff's comments about the disputed Chase account to Chase; Chase “not only verified the existence of the account but [also] confirmed that it was ‘120 days past due,' a remark of ‘foreclosure collateral sold,' a $0 balance, and a closed date of September 8, 2008”; and the consumer reporting agency revised the consumer report accordingly. 2017 WL 445237, at *12. The court explained that it was not the defendant's burden to prove that the plaintiff had a mortgage debt with Chase, and that because “Plaintiff has provided no admissible evidence to sustain his claim, . . . summary judgment in favor of Defendant is warranted.” Id.
Here, as in Jianqing Wu and Letren, Plaintiff has “failed to adduce evidence that would tend to prove that [Defendant's] reinvestigation was unreasonable.” Jianqing Wu, 2006 WL 4729755, at *8. In her response, she “disputes Experian's claim that their policies are undoubtedly reasonable”; contends that “inaccuracies persisted post-investigation[, which] casts substantial doubt on the thoroughness of Experian's investigative procedures”; and maintains that the “evidence and circumstances suggest that Experian did not adhere to the FCRA's standards for maximum possible accuracy reporting and reasonably investigation.” ECF No. 70 at 8-9. However, Plaintiff does not cite to or identity any evidence supporting these assertions and instead appears to be attempting to build her case through pure inference. “That is not a valid means of surviving summary judgment, which requires evidence, not unsupported conjecture.” Graves v. Lioi, 930 F.3d 307, 324 (4th Cir. 2019) (citing Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 320 (4th Cir. 2012) (rejecting plaintiff's “attempt[ ] to build his case through pure inference”); Hinkle v. City of Clarksburg, 81 F.3d 416, 423 (4th Cir. 1996) (holding a claim was “ripe for an adverse summary judgment determination” when “it was based upon a theory without proof” and dependent on “speculation and the piling of inferences”); Barwick v. Celotex Corp., 736 F.2d 946, 962 (4th Cir. 1984) (rejecting plaintiff's “attempt[ ] to build one vague inference upon another vague inference to produce a factual issue”)).
Because Plaintiff has provided no admissible evidence to sustain her claim for a violation of § 1681i(a)(1)(A), summary judgment in favor of Defendant on Count II is warranted.
B. Count III - Violation of § 1681i(a)(2)(A)
Section 1681i(a)(2)(A) provides:
Before the expiration of the 5-business-day period beginning on the date on which a consumer reporting agency receives notice of a dispute from any consumer or a reseller in accordance with paragraph (1), the agency shall provide notification of the dispute to any person who provided any item of information in dispute, at the address and in the manner established with the person. The notice shall include all relevant information regarding the dispute that the agency has received from the consumer or reseller.15 U.S.C. § 1681i(a)(2)(A).
Defendant has provided testimony setting forth its handling of Plaintiff's Dispute, which included timely sending all relevant documentation concerning the Disputed Accounts to the appropriate data furnishers, as well as the responses that Experian received from the furnishers verifying the accuracy of the reporting. See ECF No. 67-2 at 6-7 ¶¶ 22-29. Plaintiff's claim for violation of § 1681i(a)(2)(A) fails because Plaintiff has not presented any evidence that Defendant did not contact Capital One, Capital One Auto Finance, JPMorgan Chase, and Discover Financial Services within the five-day period set forth in that subsection, or that Defendant did not provide all the relevant information to those furnishers in connection with Plaintiff's Dispute. Accordingly, summary judgment in favor of Defendant on Count IV is appropriate.
C. Count IV - Violation of § 1681i(a)(4)
Section 1681i(a)(4) provides, “In conducting any reinvestigation under paragraph (1) with respect to disputed information in the file of any consumer, the consumer reporting agency shall review and consider all relevant information submitted by the consumer in the period described in paragraph (1)(A) with respect to such disputed information.” 15 U.S.C. § 1681i(a)(4).
Defendant has produced evidence setting forth the specific manner in which it handled Plaintiff's Dispute in detail and explaining its procedures, including that “Experian reviews all relevant information provided by the consumer and uses it, if possible, to verify the identity of the consumer, to identify the item(s) being disputed, and to determine the nature of any alleged inaccuracies.” See ECF No. 67-2 at 6-7 ¶ 16. Plaintiff has not produced any evidence that Defendant did not “review and consider all relevant information submitted by the consumer” in handling her dispute. Accordingly, Plaintiff cannot establish her claim in Count IV, and summary judgment for Defendant is appropriate.
D. Count V - Violation of § 1681i(a)(5)(A)
Section 1681i(a)(5)(A) provides:
If, after any reinvestigation under paragraph (1) of any information disputed by a consumer, an item of the information is found to be inaccurate or incomplete or cannot be verified, the consumer reporting agency shall (i) promptly delete that item of information from the file of the consumer, or modify that item of information, as appropriate, based on the results of the reinvestigation; and (ii) promptly notify the furnisher of that information that the information has been modified or deleted from the file of the consumer.15 U.S.C. § 1681i(a)(5)(A).
Plaintiff has not presented any evidence that Defendant failed to promptly delete information that was incomplete or could not be verified following a reinvestigation, and the undisputed evidence shows that the underlying data in the Disputed Accounts was verified by the furnishers in response to Plaintiff's Dispute, such that there was no valid basis for Defendant to delete any information. See ECF No. 67-2 at 6-7 ¶ 26. Thus, summary judgment in favor of Defendant on Count V is appropriate.
Accordingly, Defendant is entitled to summary judgment on each of Plaintiff's claims s forth in Counts II through V of her Complaint.
Because the undersigned recommends summary judgment on all of Plaintiff's claims, the undersigned does not reach Defendant's remaining arguments regarding damages. See ECF No. 67 at 22-29.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion f Summary Judgment (ECF No. 66) be GRANTED, and that this action be DISMISSED wi prejudice.
IT IS SO RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).