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finding no preemption where the "evidence suggest[ed] that Discover actually knew about Shaw's dispute but nonetheless reported the debt to Equifax without disclosing the dispute."
Summary of this case from Gissler v. Pa. Higher Educ. Assistance AgencyOpinion
No. 96SC189
June 2, 1997
Certiorari to the Colorado Court of Appeals
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Holme, Roberts Owen, LLC, Brent E. Rychener, G. Leland Dutcher, Jr., Colorado Springs, Colorado, Attorneys for Petitioner.
Richard C. Whaley, P.C., Richard C. Whaley, Colorado Springs, Colorado, Richard K. Walsh, Colorado Springs, Colorado, Attorneys for Respondent.
We granted certiorari in the case of Conley v. Greenwood Trust Co., 923 P.2d 307 (Colo.App. 1996), to determine whether section 5-5-108, 2 C.R.S. (1992), of the Colorado Uniform Consumer Credit Code is preempted by a provision of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 (1994). The court of appeals held that the Fair Credit Reporting Act does not preempt section 5-5-108 because the Colorado statute is not an action in the nature of defamation, and reversed the trial court's entry of summary judgment. We determine that a claim solely under subsection 5-5-108(4)(d)(IV) is in the nature of defamation and is prohibited by 15 U.S.C. § 1681 to the extent that malice or willful intent to injure is absent. We affirm in part and reverse in part.
The issue on which we granted certiorari is:
Whether the court of appeals erred in holding that 15 U.S.C. § 1681h(e) does not preempt a claim under § 5-5-108, 2 C.R.S. (1992), where the claim is based upon the disclosure of false credit information.
I.
This case was initiated by Valerie Conley, now known as Valerie Shaw (Shaw), the plaintiff below, against Greenwood Trust Company, doing business as Discover Card Finance Services (Discover), under section 5-5-108, 2 C.R.S. (1992), of the Uniform Consumer Credit Code. The record upon which we rely for the facts set forth below consists of Shaw's complaint, Discover's motion for summary judgment, and uncontested evidentiary documents filed in support of and in opposition to the summary judgment motion. Because we are reviewing a grant of summary judgment in favor of Discover, we describe the facts in the light most favorable to Shaw.
Discover sent Shaw several collection notices regarding a $1219 balance due on a Discover credit card during the course of her divorce. In September 1991, Shaw's attorney wrote to Discover that Shaw had never applied for, possessed, or made any charges with a Discover card.
Despite this notification, Discover reported the alleged unpaid debt to credit reporting agencies. An April 1992 credit report from Equifax has an entry for a Discover card, indicating that Shaw owed the disputed $1219 debt, that it was past due, and that the account had a poor credit rating. The Discover card entry contained the statement "charged off account."
Shaw commenced this action in February of 1993. Her complaint alleged that Discover provided false and defamatory credit information to consumer credit reporting agencies which damaged her credit reputation, caused her to lose credit opportunities, and caused her mental and emotional distress. Shaw also alleged that Discover's conduct in providing this false and defamatory credit information was "willful, wanton, malicious, unconscionable, and outrageous," and was done with the deliberate intent of damaging her credit reputation. Shaw also claimed that Discover had reported that it had "charged off to its bad debt accounts" the $1219 debt, implying that it regarded the debt to be uncollectible.
Shaw's complaint stated only one specific legal theory: a violation of section 5-5-108, 2 C.R.S. (1992), which prohibits unconscionable debt collection practices. The statute does not define unconscionability, but rather provides a list of factors which a fact-finder shall consider in determining whether a particular debt collection practice is unconscionable. Among the factors to be considered is causing injury to the debtor's reputation or economic status. § 5-5-108(4)(d), 2 C.R.S. (1992). Among the various ways such an injury may be inflicted is by disclosing information about a disputed debt without disclosing the fact that it is disputed. § 5-5-108(4)(d)(IV), 2 C.R.S. (1992).
Section 5-5-108 provides in pertinent part:
. . . .
(2) With respect to a consumer credit transaction, if the court as a matter of law finds that a person has engaged in . . . unconscionable conduct in collecting a debt arising from that transaction, the court may grant an injunction and award the debtor any actual damages he has sustained.
. . . .
(4) In applying subsection (2) of this section, consideration shall be given to each of the following factors, among others, as applicable:
(a) Using or threatening to use force or violence against the debtor or members of his family;
(b) Communicating with the debtor or a member of his family at frequent intervals or at unusual hours or under other circumstances so that it is a reasonable inference that the primary purpose of the communication was to harass the debtor;
(c) Using fraudulent, deceptive, or misleading representations such as a communication which simulates legal process or which gives the appearance of being authorized, issued, or approved by a government, governmental agency, or attorney at law when it is not, or threatening or attempting to enforce a right with knowledge or reason to know that the right does not exist;
(d) Causing injury to the debtor's reputation or economic status by:
(I) Disclosing information affecting the debtor's reputation for credit worthiness with knowledge or reason to know that the information is false;
(II) Orally communicating with the debtor's employer before obtaining a final judgment against the debtor, except: As permitted by statute; or to verify his employment; or to ascertain his whereabouts; or to request that the debtor contact the creditor;
(III) Disclosing to a person, with knowledge or reason to know that the person does not have a legitimate business need for the information, or in any way prohibited by statute, information affecting the debtor's credit or other reputation; or
(IV) Disclosing information concerning the existence of a debt known to be disputed by the debtor without disclosing that fact . . . .
(e) Engaging in conduct with knowledge that like conduct has been restrained or enjoined by a court in a civil action by the administrator against any person pursuant to the provisions on injunctions against fraudulent or unconscionable agreements or conduct (section 5-6-111).
§ 5-5-108, 2 C.R.S. (1992).
In its answer, Discover admitted that it had charged the disputed debt off to its bad debt accounts, and did not deny having reported this fact to credit reporting agencies. It later sent a "universal data form" to consumer reporting agencies instructing them to delete Shaw's "name [from the debt as] the result of [a] legal settlement." Discover asserted that its actions were subject to qualified immunity under the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 (1994) (FCRA).
A line on the universal data form asking for "reason for deletion or status change from adverse to favorable" was filled out: "Deletion of Valerie Conley's name the result of legal settlement."
Section 1681h(e) of the FCRA states in pertinent part that "no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against . . . any person who furnishes information to a consumer reporting agency . . . except as to false information furnished with malice or willful intent to injure such consumer." 15 U.S.C. § 1681h(e) (1994) (emphasis added). Discover asserted that it was immune under this statute because it did not act with malice or willful intent to injure Shaw in disclosing information concerning the disputed debt.
Section 1681h(e) states in its entirety:
Except as provided in sections 1681n and 1681o of this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m of this title, or based on information disclosed by a user of a consumer report to or a consumer against whom the user has taken adverse action, based in whole or in part on the report, except as to false information furnished with malice or willful intent to injure such consumer.
15 U.S.C.A. § 1681h(e) (1994 1997 Supp.). The underlined text was added by a 1996 amendment, see Pub.L. No. 104-208, 110 Stat. 3009., and is therefore not directly applicable to this case.
Discover moved for summary judgment on the basis of this federal immunity, as well as for other reasons which are no longer at issue. In support of its motion, Discover submitted a telemarketing form indicating that Shaw had applied for a Discover credit card by telephone. The telemarketing form was not signed by Shaw. Discover included a copy of Shaw's deposition, in which she stated that the telemarketing form must be "a lie," because she never applied for a Discover card. Discover also submitted a copy of the form which it sent to consumer credit reporting agencies, asking those agencies to delete the previously reported debt from Shaw's credit report because of a "legal settlement."
Discover also asserted a statute of limitations defense that it later withdrew, and it asserted that Shaw could not enjoy the protections of section 5-5-108 because she denied owing any debt and was therefore not a "debtor" under that statute. The court of appeals rejected this argument as "bordering on disingenuity." Conley, 923 P.2d at 309. The qualified immunity defense of § 1681h(e) is the only remaining basis for summary judgment.
In her response to Discover's summary judgment motion, Shaw asserted that the qualified immunity of the FCRA only applied to information disclosed by consumer reporting agencies to others, and did not apply to information which Discover disclosed to consumer reporting agencies. Shaw also argued that even if the FCRA were applicable, her claim would not be barred by § 1681h(e) because Discover acted with malice. Shaw submitted a copy of the Equifax report which showed that even after she had notified Discover that she did not owe the debt, Discover still reported that it had "charged off" the debt as uncollectible. Shaw maintained that this action demonstrated Discover's malicious and willful disregard of the unconscionability factor in subsection 5-5-108(4)(d)(IV), which requires debt collectors to report the fact that a debt is disputed when disclosing information about the debt. In so doing, Shaw conceded that if the qualified immunity of the FCRA were applicable, then her entire claim under section 5-5-108 was premised upon Discover's alleged willful violation of subsection 5-5-108(4)(d)(IV).
In her brief before this court, Shaw asserts that Discover violated subsection 5-5-108(4)(d)(IV) when it instructed consumer credit reporting agencies to delete the debt from Shaw's file because of a "legal settlement" without mentioning the fact that Shaw consistently maintained that she owed Discover nothing. Shaw's cause of action under the statute is thus still entirely premised upon alleged violations of subsection 5-5-108(4)(d)(IV).
For the purpose of ruling on Discover's motion for summary judgment, the trial court was required to resolve disputed issues of fact in the light most favorable to the nonmoving party. C.R.C.P. 56; see McConnell v. St. Paul Fire Marine Ins. Co., 906 P.2d 109, 111 (Colo. 1995). The trial court held, without any explanation, that there were no issues of disputed fact and granted Discover's motion for summary judgment.
Shaw appealed, and the court of appeals reversed. The court of appeals noted that Discover "is a `person who furnish[ed] information to a consumer reporting agency' and, at least to this extent, is `subject to the provisions' of the [FCRA]." Conley v. Greenwood Trust Co., 923 P.2d 307, 309 (Colo.App. 1996). The court of appeals did not otherwise address Shaw's argument that § 1681h(e) does not apply.
Having determined that § 1681h(e) of the FCRA applied, the court of appeals considered whether it preempted section 5-5-108. By its language, § 1681h(e) of the FCRA preempts all causes of action "in the nature of defamation." Shaw's action against Discover for unconscionable debt collection practices was entirely premised upon only one of the several unconscionability factors enumerated in the statute — subsection 5-5-108(4)(d)(IV). Shaw alleged that Discover had injured her "reputation or economic status" by "disclosing information concerning the existence of a debt known to be disputed by the debtor without disclosing that fact." The question was whether Shaw's claim under this subsection was "in the nature of defamation."
The court of appeals held that § 1681h(e) did not preempt Shaw's claim because it was not an action in the nature of defamation. The court reasoned that
an action under section 5-5-108 is not an action `in the nature of defamation [or] invasion of privacy'; it is an action to enforce a statutory right. And, its enforcement is not dependent upon proof of any common law tort. Rather, it requires a consideration of numerous factors to determine whether a creditor's actions have been unconscionable.
Conley, 923 P.2d at 309. Having determined that the FCRA did not preempt Shaw's action under section 5-5-108, the court of appeals reversed the trial court's entry of summary judgment and remanded for further proceedings.
The court of appeals also noted that to the extent Shaw's complaint could be interpreted as stating any other claims, such as common law defamation, she had abandoned those claims on appeal. See Conley, 923 P.2d at 309. We agree that Shaw has abandoned any claims besides a violation of subsection 5-5-108 (4)(d)(IV) in this litigation.
II.
Before addressing whether and to what extent the FCRA preempts section 5-5-108, we must first determine whether the FCRA applies to these facts. The FCRA does not govern debt collection. Cf. 15 U.S.C. § 1692 (1994) (Fair Debt Collection Practices Act). Rather, the FCRA is directed toward consumer reporting agencies, such as Equifax and TRW, which collect and compile information into consumer credit reports. The purpose of the FCRA is to
require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, 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 . . . .
15 U.S.C. § 1681 (1994) (Congressional findings and statement of purpose). The various sections of the FCRA govern how consumer credit reporting agencies may collect and disclose information.
Discover is not a consumer credit reporting agency. See 15 U.S.C. § 1681(f) (defining "consumer reporting agency"); see also Rush v. Macy's New York, Inc., 775 F.2d 1554, 1557 (11th Cir. 1985) (department store which extended credit was not a consumer reporting agency); Mitchell v. Surety Acceptance Corp., 838 F. Supp. 497, 500 (D. Colo. 1993) (debt collection agency was not a consumer reporting agency); Mitchell v. First Nat'l Bank of Dozier, 505 F. Supp. 176, 177 (M.D. Ala. 1981) (bank which did no more than furnish information to a consumer reporting agency was not itself a consumer reporting agency). For purposes of this case, Discover is a "person who furnishes information to a consumer reporting agency" under the FCRA, and § 1681h(e) in particular. See Mitchell, 838 F. Supp. at 501; Mitchell, 505 F. Supp. at 176; see also Laracuente v. Laracuente, 599 A.2d 968, 970 (N.J.Super.Ct. Law Div. 1991). Shaw is a consumer under the FCRA.
The qualified immunity provision of the FCRA provides:
Except as provided in sections 1681n and 1681o of this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m of this title, except as to false information furnished with malice or willful intent to injure such consumer.
Sections 1681n and 1681o create causes of action against consumer reporting agencies which willfully or negligently fail to comply with the FCRA's requirements. Because Discover is not a consumer reporting agency, it is not subject to these provisions. See Mitchell, 505 F. Supp. at 177; Laracuente, 599 A.2d at 969-70; Pulver v. Avco Fin. Servs., 227 Cal.Rptr. 491, 496 (Cal.Ct.App. 1986).
15 U.S.C. § 1681h(e) (1994) (emphasis added). This immunity provision may therefore apply to Shaw's action against Discover, provided that the action is "based on information disclosed pursuant to section 1681g, 1681h, or 1681m" of the FCRA.
Section 1681m is entitled "Requirements on users of consumer reports." That section states, in pertinent part:
(b) Adverse action based on reports of persons other than consumer reporting agencies
Whenever credit for personal, family or household purposes involving a consumer is denied . . . because of information obtained from a person other than a consumer reporting agency bearing upon the consumer's credit worthiness . . ., the user of such information shall . . . disclose the nature of the information to the consumer.
15 U.S.C. § 1681m(b) (1994) (emphasis added).
In opposing the motion for summary judgment, Shaw has offered no evidence in support of her claims other than damage to her reputation. The only evidence which Shaw has offered to show how her reputation has been damaged is the report from Equifax which shows the false debt. In opposing the motion for summary judgment, Shaw has not offered, argued, or alleged any other evidence to show how her reputation has been injured. Because Shaw's action is based solely upon information which Discover disclosed to a consumer reporting agency, it falls within the purview of § 1681m(b) of the FCRA.
Discover concedes that it did not disclose the instant information about Shaw's alleged debt pursuant to § 1681h. Discover maintains that its information must have been disclosed pursuant to either § 1681g or § 1681m, although it does not explain how the present facts fit into either of those sections of the FCRA.
Section 1681g, entitled "Disclosures to consumers," does not apply here. It details precisely what types of information a consumer reporting agency must disclose to a consumer who requests her credit report. Here, Shaw's allegations are not based on information which a consumer reporting agency disclosed to her, but are based on information which Discover disclosed to consumer reporting agencies. Shaw's suit is thus not based on information disclosed pursuant to § 1681g. But cf. Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1069 (9th Cir. 1992) (reaching § 1681h(e) immunity through § 1681g, although not explaining how § 1681g applied).
We conclude that Shaw's action is based upon information disclosed pursuant to § 1681m(b), and as a result the qualified immunity provisions of § 1681h(e) are applicable to these claims. We now turn to the question of whether and to what extent § 1681h(e) preempts Shaw's claim under section 5-5-108.
Cases have frequently applied § 1681h(e) immunity to persons who furnish information to a consumer reporting agency, but generally neglect to state whether they do so based on information provided pursuant to § 1681g, § 1681h or § 1681m. The facts of these cases usually involve a creditor which reports a bad debt to a consumer reporting agency, suggesting that § 1681m would apply. See Rhodes v. Ford Motor Credit Co., 951 F.2d 905, 906 (8th Cir. 1991); Mitchell v. Surety Acceptance, Corp., 838 F. Supp. 497, 501 (D. Colo. 1993); Nikou v. INB Nat'l Bank, 638 N.E.2d 448, 451 (Ind.Ct.App. 1994); Parker v. Laurence Eustis Mortgage Corp., 615 So.2d 1102, 1103 (La.Ct.App. 1993); Laracuente v. Laracuente, 599 A.2d 968, 969-70 (N.J.Super.Ct. Law Div. 1991).
But see Retail Credit Co. v. Russel, 218 S.E.2d 54, 56 (Ga. 1975) (declining to apply FCRA to suit by consumer against credit reporting agency which published defamatory information about him); Pulver v. Avco Fin. Servs., 227 Cal. Rptr 491 (Cal.Ct.App. 1986) (creditor's reporting of false debt to consumer reporting agencies was not subject to qualified immunity under § 1681h(e) of the FCRA); Note, The Fair Credit Reporting Act: Are Business Credit Reports Regulated?, 1971 Duke L. J. 1229, 1241 n. 67 (1971) (citing the Federal Trade Commission's original 1971 interpretation of the FCRA for the proposition that the qualified immunity provisions of § 1681h(e) were not intended to apply to actions "when the consumer obtains the information independently of agency or user disclosures").
III.
The authority of a federal statute to preempt a state statute is derived from the Supremacy Clause of the United States Constitution and is commonly referred to as the preemption doctrine. The preemption doctrine reflects a desire for uniformity of laws in areas of national concern, providing that when Congress exercises its legislative powers in a regulatory field, similar state legislation may be rendered invalid. See Fidelity Fed. Sav. Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982) ("[S]tate law is nullified to the extent it actually conflicts with federal law.").
This court has outlined the instances in which federal preemption may occur. In Department of Health v. The Mill, 887 P.2d 993 (1994), cert. denied, 115 S. Ct. 2612 (1995), we stated:
Federal law preempts state law when Congress expresses clear intent to preempt state law; when there is outright or actual conflict between federal and state law; when compliance with both federal and state law is physically impossible; when there is an implicit barrier within federal law to state regulation in a particular area; when federal legislation is so comprehensive as to occupy the entire field of regulation; or when state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.
Id. at 1004 (citing Frontier Airlines, Inc. v. United Air Lines, Inc., 758 F. Supp. 1399, 1407 (D. Colo. 1989)).
In Department of Health, this court began its analysis of the preemption doctrine with the assumption that historic state police powers should not be abrogated by federal law unless that purpose is clearly indicated in the federal statute. 887 P.2d at 1004. Thus, we must determine the intent of Congress in enacting the FCRA.
Congressional intent is determined primarily from the statute's plain language, and secondarily from the statute's legislative history. See id. (citing Mass. v. Martin Marietta Corp., 805 F. Supp. 1530, 1534 (D. Colo. 1992)).
Congressional intent to pre-empt state law in a given area of law can be explicitly set forth or can be implicit. In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law . . . or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.
In re Marriage of Heupel, No. 95SC754, slip op. at 8 (Colo. Apr. 21, 1997) (citations and internal quotation marks omitted).
Here, Congress explicitly stated the precise degree to which it intended the FCRA to preempt state law. Section 1681t of the FCRA provides that the FCRA is not intended to
annul, alter, affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency.
15 U.S.C. § 1681t (1994) (emphasis added). Congress thus clearly expressed its intent not to preempt the field of state credit reporting and debt collection legislation with the FCRA. See Credit Data of Arizona, Inc. v. Arizona, 602 F.2d 195, 197 (9th Cir. 1979). As a result, section 5-5-108 will be preempted only to the extent that it is in outright or actual conflict with the FCRA.
The preemptive provision of the FCRA at issue here is § 1681h(e), which states in pertinent part:
no consumer may bring any action or proceeding in the nature of defamation . . . against . . . any person who furnishes information to a consumer reporting agency, . . . except as to false information furnished with malice or willful intent to injure such consumer.
15 U.S.C. § 1681h(e) (1994) (emphasis added). The court of appeals determined that section 5-5-108 was not preempted by the above language because it was not an action in the nature of defamation. We conclude that an action solely for injury to reputation, by disclosing a debt to a credit reporting agency without disclosing that the debt is disputed, is an action in the nature of defamation.
A.
The court of appeals held that "an action under section 5-5-108 is not an action `in the nature of defamation [or] invasion of privacy'; it is an action to enforce a statutory right." Conley v. Greenwood Trust Co., 923 P.2d 307, 309 (Colo.App. 1996). We do not view this distinction as determinative. A legislature's decision to codify what was once only a common law cause of action does not necessarily change the character of that cause of action. For instance, a legislature could simply enact the definition of defamation from a source of black-letter law, such as the Second Restatement of Torts, and thereby convert the common law tort of defamation into a statutory cause of action without changing the nature of the tort.
Some state legislatures have enacted the tort of defamation into their legal codes. See Ga. Code Ann. §§ 51-5-1 to -4 (Michie 1982 Supp. 1996); Mont. Code Ann. §§ 27-1-801 to -803 (1995); Okla. Stat. Ann. tit. 12, §§ 1441 to -1442 (West 1993); S.D. Codified Laws §§ 20-11-1 to -4 (Michie 1995); Tex. Civ. Prac. Rem. Code § 73.0001 (1993).
The court of appeals also held that the enforcement of section 5-5-108 "is not dependent upon proof of any common law tort." Id. While this is true, it ignores the question of whether an action under section 5-5-108 might be "in the nature of defamation." We have recognized that "[a]t common law, the tort of defamation existed to redress and compensate individuals who suffered serious harm to their reputations due to the careless or malicious communications of others." Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994). Here, Shaw's action against Discover is based solely on subsection 5-5-108(4)(d)(IV), which prohibits unconscionable debt collection practices which
cause injury to the debtor's reputation or economic status by . . . [d]isclosing information concerning the existence of a debt known to be disputed by the debtor without disclosing that fact.
§ 5-5-108(4)(d)(IV), 2 C.R.S. (1992) (emphasis added). This subsection of the statute addresses debt collection practices which cause injury to a consumer's economic reputation due to a debt collector's careless or malicious communications to others. The subsection thus proscribes a specific type of defamation: defamation by false credit reporting. Cf. Keohane, 882 P.2d at 1297.
Finally, the court of appeals held that section 5-5-108 requires a consideration of numerous factors to determine whether a creditor's actions have been unconscionable. We agree that a claim under section 5-5-108 which presents numerous factors to consider in determining whether a creditor's debt collection practice is unconscionable would not be in the nature of defamation. However, Shaw's claim presents only one factor to consider: injury to reputation by failing to disclose that the debt was disputed when reporting the debt to credit reporting agencies. § 5-5-108(4)(d)(IV). This single factor is in the nature of defamation. An action which alleges only this one factor as an unconscionable debt collection practice is an action in the nature of defamation.
We conclude that the court of appeals erred in determining that Shaw's claim was not "in the nature" of defamation and therefore not subject to the preemptive provisions of § 1681h(e) of the FCRA, because Shaw's claim is based solely on subsection 5-5-108(4)(d)(IV).
B.
Although § 1681h(e) preempts state actions in the nature of defamation, it specifically exempts actions based on "false information furnished with malice or willful intent to injure [the] consumer." Shaw alleged that Discover's conduct was "willful, wanton, malicious, unconscionable, and outrageous." Discover denied any such conduct in its answer. By granting Discover's motion for summary judgment without comment, the trial court did not specifically address whether Discover had produced some evidence that it lacked malice or willful intent, or whether Shaw had produced any contrary evidence to put the matter into dispute. By holding that the FCRA did not preempt Shaw's action, the court of appeals likewise did not address this issue in its opinion.
Summary judgment is a drastic remedy and is never warranted except on a clear showing that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-40 (Colo. 1988). The moving party has the initial burden to show that there is no genuine issue of material fact. See Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987). However, once the moving party has met its initial burden of production, the burden shifts to the nonmoving party to establish that there is a triable issue of fact. See Ginter v. Palmer, 196 Colo. 203, 206, 585 P.2d 583, 585 (1978). The nonmoving party "must receive the benefit of all favorable inferences that may be reasonably drawn from the undisputed facts." Tapley v. Golden Big O Tires, 676 P.2d 676, 678 (Colo. 1983). All doubts as to whether an issue of fact exists must be resolved against the moving party. See Dominguez v. Babcock, 727 P.2d 362, 365 (Colo. 1986). Even if it is extremely doubtful that a genuine issue of fact exists, summary judgment is not appropriate. See Abrahamsen v. Mountain States Tel. Tel. Co., 177 Colo. 422, 428, 494 P.2d 1287, 1290 (1972). Moreover, because neither party has disputed the competence or admissibility of the evidentiary materials offered in support of and in opposition to the summary judgment motion, we may consider all of this record evidence in our analysis. Cf. C.R.C.P. 56(e).
The triable issue in this case is not whether Discover disclosed false, defamatory information to consumer reporting agencies. Because § 1681h(e) preempts Shaw's claim in the nature of negligent defamation, the issue is whether Discover defamed Shaw with malice or willful intent. Cases interpreting the term "malice" in § 1681h(e) have borrowed the definition used in other federal caselaw dealing with defamation: knowledge that a statement is false or reckless disregard for whether a statement is false or not. See Thornton v. Equifax, Inc., 619 F.2d 700, 705 (8th Cir. 1980) (citing New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964)).
Subsection 5-5-108(4)(d)(IV) requires that when a debt collector discloses information concerning the existence of a debt known to be disputed by the debtor, it must also disclose the fact that the debt is disputed. It is this failure to acknowledge the fact of the dispute which may be defamatory. If Discover failed to disclose Shaw's dispute, without malice or willful intent to injure, when it communicated information about the alleged debt to credit reporting agencies, then Discover would enjoy qualified immunity under the FCRA for any defamation. Only if Discover failed to report the dispute with malice or willful intent to injure can Shaw's claim under subsection 5-5-108(4)(d)(IV) avoid preemption and survive summary judgment. Hence, the disputed factual issue presented is whether Discover acted with malice or willful intent to injure when it reported the debt without reporting that the debt was disputed.
The record reveals that after Shaw's attorney wrote to Discover about the dispute, Discover reported to Equifax that Shaw still owed the disputed $1219 debt. This entry in Shaw's credit report includes the notation "charged off account." Discover later instructed these credit reporting agencies to delete Shaw's "name [from the debt as] the result of [a] legal settlement."
These documents are highly ambiguous. There is no competent evidence of record which reveals what the "charged off account" notation in Shaw's consumer credit report actually means. Likewise, a number of inferences could be drawn from Discover's instruction to delete Shaw's name due to a "legal settlement."
When taken in the light most favorable to Shaw, however, this evidence suggests that Discover actually knew about Shaw's dispute but nonetheless reported the debt to Equifax without disclosing the dispute. It may be inferred from the "charged off account" notation that an undisputed debt could not be collected. Also, the "legal settlement" notation on the universal data form could raise an inference that Shaw acknowledged the existence or validity of the debt when Discover knew that Shaw had done no such thing. These disclosures fail to communicate the fact of Shaw's dispute. The repeated failure to disclose that the debt is disputed, after being so advised, raises a genuine dispute as to whether Discover acted with malice as defined in § 1681h(e). We conclude that the trial court erred in entering total summary judgment in favor of Discover.
We express no opinion as to whether these alleged violations of subsection 5-5-108(4)(d)(IV) actually injured Shaw's reputation, or whether these alleged violations of this one narrow subsection, by themselves, are sufficient to constitute an unconscionable debt collection practice which entitles Shaw to relief under the statute. We merely hold that these allegations may fit within the "malice" exception to § 1681h(e), in which case they will not be preempted by the FCRA and must survive Discover's motion for summary judgment.
Section 5-5-108, 2 C.R.S. (1992) is derived from the 1974 Uniform Consumer Credit Code Act. See 7A Uniform Laws Annotated § 5.108 (West 1985). The official comment states that the statutory language is meant to incorporate unconscionability principles from the Uniform Commercial Code. The goal is to prevent "oppression and unfair surprise" in consumer credit transactions, a standard which is extremely fact-sensitive. Id. cmt. 3.
We have found no cases where courts have found violations of subsection 5-5-108(4)(d)(IV) alone to constitute unconscionable conduct, although courts have found unconscionability where a subsection 5-5-108(4)(d)(IV) violation existed in combination with other factors enumerated in the statute. See Peters v. Collision Clinics Int'l, Inc., 404 So.2d 116 (Fla.Dist.Ct.App. 1981) (automobile repair shop sent letter to employer that employees had failed to pay their bills without also disclosing that bills were disputed; conduct violated various provisions of Florida's version of § 5.108, including provision prohibiting the disclosure of a debt without disclosing the fact that the debt is disputed); State v. Valleta, 438 N.Y.S.2d 187 (N.Y. Sup. Ct. 1981) (creditor sent debtor a letter threatening to: collect unwarranted delivery, service and pickup costs for defective television; turn debtor over to attorney whose brother was a judge; collect further court costs and fees from litigation; and send debtor's name in to a credit reporting bureau. The letter violated New York's version of § 5.108, including provision prohibiting the threat of disclosure of a debt without disclosing the fact that the debt is disputed).
IV.
We conclude that the federal Fair Credit Reporting Act applies to this case because the claim is based solely on information which Discover disclosed to consumer reporting agencies as an injury to Shaw's credit reputation. The court of appeals erred in holding that claims under section 5-5-108, 2 C.R.S. (1992), cannot be "in the nature of defamation". Because Shaw's claim under subsection 5-5-108(4)(d)(IV) is in the nature of defamation, it is subject to preemption by § 1681h(e) of the federal Fair Credit Reporting Act. However, there is evidence which suggests that Shaw's claim may fall under the "malice" exception to preemption provided in § 1681h(e), which precludes total summary judgment for Discover on the basis of federal preemption.
Therefore, summary judgment was properly entered to the extent that Discover's failure to disclose that the debt was disputed was without malice or willful intent to injure. Such a failure may not be considered as a factor to determine whether it was an unconscionable debt collection practice. Summary judgment was not properly entered to the extent that Discover's failure to disclose that the debt was disputed was with malice or willful intent to injure.
We therefore return this case to the court of appeals for remand to the district court for further proceedings on Shaw's state statutory claim. Upon remand, the court shall determine whether Discover's failure to report the dispute was with malice or willful intent to injure. If so, the court shall determine whether this conduct injured Shaw's reputation so as to constitute an unconscionable debt collection practice.
CHIEF JUSTICE VOLLACK concurs in part and dissents in part, and JUSTICE SCOTT joins in the concurrence and dissent.
JUSTICE SCOTT concurs in part and dissents in part, and CHIEF JUSTICE VOLLACK joins in the concurrence and dissent.