John Tauro v. Capital One Financial Corp, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: RESTREPO, SCIRICA and FISHER, Circuit Judges. Total Pages: 6.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1065
___________
JOHN J. TAURO,
Appellant
v.
CAPITAL ONE FINANCIAL CORPORATION; CAPITAL ONE NA;
CAPITAL ONE BANK NA (USA)
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-15-cv-01136)
District Judge: Honorable Joy Flowers Conti
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 22, 2017
Before: RESTREPO, SCIRICA and FISHER, Circuit Judges
(Opinion filed: March 28, 2017)
___________
OPINION*
___________
PER CURIAM
John J. Tauro appeals pro se from an order of the United States District Court for
the Western District of Pennsylvania denying his motion for summary judgment and

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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granting the defendants’ motion for summary judgment in an action under the Fair Credit
Reporting Act (FCRA). For the following reasons, we will affirm.
In August 2015, Tauro filed a complaint naming as defendants Capital One
Financial Corp., Capital One N.A., and Capital One Bank (USA), N.A. (collectively,
Capital One). He alleged that the defendants failed to conduct a reasonable investigation
into his disputes concerning a credit card account, 15 U.S.C. § 1681s-2(b), failed to
furnish correct and accurate information to consumer reporting agencies (CRAs), 15
U.S.C. § 1681s-2(a)(2), and failed to report the date of his delinquency on the account, 15
U.S.C. § 1681s-2(a)(5)(A). The matter was referred to a Magistrate Judge, who
concluded that no private right of action existed for alleged violations of § 1681s-2(a),
and that Tauro failed to meet his burden of demonstrating that Capital One Bank’s
investigation was not reasonable.1 The District Court overruled Tauro’s objections,
adopted the Magistrate Judge’s Report and Recommendation, and denied Tauro’s motion
for summary judgment and granted Capital One’s motion for summary judgment. Tauro
appealed.
We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s
entry of summary judgment is plenary. See Fuges v. Sw. Fin. Servs., Ltd., 707 F.3d 241,
246 n.8 (3d Cir. 2012). Summary judgment is proper where, viewing the evidence in the
1

The Magistrate Judge also noted that the duty to conduct a reasonable investigation did
not apply to Capital One Financial or Capital One, N.A., because the undisputed record
indicated that those entities did not furnish Tauro’s account information to the consumer
reporting agencies. See § 1681s-2(b) (imposing a duty on furnishers of information to,
inter alia, “conduct an investigation”).
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light most favorable to the nonmoving party and drawing all inferences in favor of that
party, there is no genuine dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Kaucher v. Cty. of Bucks, 455 F.3d 418, 422-23 (3d Cir.
2006).
The FCRA “was crafted to protect consumers from the transmission of inaccurate
information about them, and to establish credit reporting practices that utilize accurate,
relevant, and current information in a confidential and responsible manner.” Cortez v.
Trans Union, LLC, 617 F.3d 688, 706 (3d Cir. 2010) (quotation marks omitted). “The
FCRA places certain duties on those who furnish information to consumer reporting
agencies.” SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 357 (3d Cir. 2011).
For example, furnishers are required to correct any information they later discover to be
inaccurate, § 1681s-2(a)(2), and, when an account is placed for collection or charged to
profit or loss, furnishers must notify the CRAs of the account’s “date of delinquency,”
§ 1681s-2(a)(5)(A). Tauro alleges that Capital One failed to comply with both of these
provisions. Notably, however, the FCRA prohibits private enforcement of the duties
arising under § 1681s-2(a). See Seamans v. Temple Univ., 744 F.3d 853, 864 (3d Cir.
2014) (holding that “FCRA explicitly precludes private suits for failure to comply with [§
1681-2(a)], 15 U.S.C. § 1681s-2(c), and instead provides for enforcement of that
provision by federal and state officials, 15 U.S.C. § 1681s-2(d).”). Consequently, the
District Court properly granted Capital One’s motion for summary judgment as to
Tauro’s claims under § 1681s-2(a).
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Tauro also complained that Capital One violated § 1681s-2(b) by failing to
adequately investigate his reports of inaccurate information in his credit report.2 We have
held that an investigation into a consumer’s complaint must be “reasonable.”
SimmsParris, 652 F.3d at 359. “[A] reasonable procedure is one that a reasonably
prudent person would undertake under the circumstances.” Seamans, 744 F.3d at 864
(internal quotations omitted). In addition, “when assessing reasonableness, the factfinder
must balance ‘the potential harm from inaccuracy against the burden of safeguarding
against such inaccuracy.’” Id. at 865 (quoting Cortez, 617 F.3d at 709). Whether an
investigation is reasonable “is normally a question for trial unless the reasonableness or
unreasonableness of the procedures is beyond question.” Cortez, 617 F.3d at 709
(quotation marks omitted).
Tauro opened a credit card account with HSBC in November 2006.3 That account
went into default in January 2009, but Tauro later negotiated a settlement of the account
in December 2009. Thereafter, in May 2012, Capital One Bank acquired accounts,
2

Although, as explained above, consumers may not enforce the requirements of § 1681s2(a), consumers do have a private right of action to challenge violations of § 1681s-2(b).
See SimmsParris, 652 F.3d at 358.
3

The information in this paragraph was provided in a declaration submitted by a Legal
Specialist Associate who works for Capital One Services. We reject Tauro’s claim that
the Legal Services Specialist’s declaration should be ignored because she had “no first
hand fact knowledge of [his] business dealings with HSBC.” In her declaration, the
Legal Services Specialist explained that, prior to working at Capital One, she “was
employed with HSBC in connection with [its] domestic credit card business.” In
addition, she described how Tauro’s HSBC’s account was acquired by Capital One Bank,
indicated that she has “knowledge of the manner and method by which Capital One Bank
prepares and maintains its normal business records or its credit accounts,” and stated that
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including Tauro’s, that were associated with HSBC’s domestic credit card business.
Capital One Bank reported to two CRAs, Experian and TransUnion, that Tauro’s account
had been settled. Nevertheless, Tauro complained to Experian and TransUnion that their
information concerning his account was inaccurate and that the account did not belong to
him. Experian and TransUnion forwarded those complaints to Capital One Bank, which
conducted investigations. In particular, it compared its internal data with the data being
reported by Experian and TransUnion. The investigations did not reveal any
discrepancies or inaccuracies. Capital One Bank reported the results of its investigations
to the CRAs.
Under these facts and the standards articulated above, we conclude that the
District Court properly granted summary judgment in favor of Capital One on Tauro’s
claims under § 1681s-2(b). Tauro failed to introduce any direct or circumstantial
evidence that the CRAs’ information was inaccurate or incomplete, or that Capital One
Bank did not conduct reasonable investigations with respect to the disputed information.
See Chiang v. Verizon N. Eng. Inc., 595 F.3d 26, 37 (1st Cir. 2010) (“The burden of
showing the investigation was unreasonable is on the plaintiff.”). Often, Tauro’s
complaints about the account, which were forwarded by the CRAs to Capital One Bank,
did not specifically identify the alleged errors.4 See Seamans, 744 F.3d at 865 (stating
she understands “Capital One Bank’s procedures for investigating disputes ….”
4
We note that Tauro’s complaints were not always vague. Once, the notice indicated
that Tauro disputed “current/previous account status, payment history, or payment
rating.” Another notice stated that Tauro disputed the “account balance,” “the last
payment, date account opened, date of first delinquency, billing date, or date account was
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that “where a given notice contains only scant or vague allegations of inaccuracy, a more
limited investigation may be warranted.”). To the extent that Tauro claims that the
information provided by Capital One Bank is “unreliable and based upon faulty records,”
his conclusory assertion is not sufficient to defeat summary judgment. See Halsey v.
Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (“an inference based upon a speculation or
conjecture does not create a material factual dispute sufficient to defeat summary
judgment.” (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir.
1990)). Tauro noted that the CRAs listed different post office box addresses for Capital
One and reported different dates on which the account would be removed from his credit
report. Those discrepancies, however, are not material to the reasonableness of Capital
One Bank’s investigations.5 Likewise, Tauro’s suggestion that HSBC could not sell his
settled account, and that Capital One Bank’s acquisition of the account was improper, has
no bearing on the reasonableness of the investigations.
For these reasons, we will affirm the judgment of the District Court.

closed.”
5

Moreover, we note that the undisputed evidence demonstrates that Capital One
maintains more than one post office box and that it reported the same date of first
delinquency to both CRAs.
6