Walker v. Experian Information Solutions, Inc. et al

Filing 178

MEMORANDUM OPINION AND ORDER: it is ORDERED as follow: 1) Defendant's Motion for Summary Judgment (doc. 123 ) is GRANTED IN PART and DENIED IN PART; 2) As to Count Four, Defendant's Motion for Summary Judgment (doc. 123 ) is GRANTED; 3) As to Count Five, Defendant's Motion for Summary Judgment (doc. 123 ) is DENIED as to the May 24, 2021 letter; 4) To the extent Defendant moves for summary judgment with respect to the remaining Count Five claims, Defendant's Motion for Summary Judgment (doc. 123 ) is GRANTED; 5) Plaintiff's Motion for Partial Summary Judgment (doc. 124 ) is DENIED. Signed by Honorable Judge R. Austin Huffaker, Jr on 3/28/2024. (CWL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
AMY WALKER,
Plaintiff,
v.
EXPERIAN INFORMATION
SOLUTIONS INC., et al.,
Defendants.

)
)
)
)
)
) CASE NO. 1:22-cv-00299-RAH
)
[WO]
)
)
)

MEMORANDUM OPINION AND ORDER
This matter involves alleged violations of the Fair Credit Reporting Act
(FCRA), 15 U.S.C. § 1681, et seq., and the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. § 1692, et seq., by Defendant IC System, Inc. (ICS) in
connection with an allegedly fraudulent AT&T DirecTV account opened in Plaintiff
Amy Walker’s name. ICS has moved for summary judgment on the FCRA and
FDCPA claims and Plaintiff has moved for summary judgment on the FCRA claim.
With the parties’ motions being fully briefed and thus ripe for decision, for the
reasons more fully set forth below, ICS’s motion is due to be GRANTED in part and
DENIED in part and Plaintiff’s motion is due to be DENIED.
I.

JURISDICTION AND VENUE

Subject matter jurisdiction is conferred by 28 U.S.C. § 1331 as to Plaintiff’s
federal causes of action. The parties do not contest personal jurisdiction or venue,
and there are adequate allegations to support both. See 28 U.S.C. § 1391.

1

II.

STANDARD OF REVIEW

A court must grant summary judgment “if the movant shows there is no
genuine dispute as to any material facts and the movant is entitled to judgment as a
matter of law” based on the materials in the record. Fed. R. Civ. P. 56(a), (c). The
court must view the evidence and make all reasonable inferences drawn therefrom
“in the light most favorable to the nonmovant.” Jean-Baptiste v. Gutierrez, 627 F.3d
816, 820 (11th Cir. 2010). A genuine dispute as to a material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Applicable
substantive law identifies those facts that are material. Id. An issue is not genuine
if it is unsupported by evidence or created by evidence that is “merely colorable, or
is not significantly probative.” Id. at 249 (citations omitted).
The party seeking summary judgment “always bears the initial responsibility
of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The movant can satisfy its burden of proving the absence
of a genuine dispute by citing to materials in the record or by showing the nonmovant
cannot produce evidence to establish an element essential to their case to which it
has the burden of proof. Fed. R. Civ. P. 56(c)(1); Celotex Corp., 477 U.S. at 322–
23. If the movant meets this burden, the burden shifts to the nonmoving party to
establish “specific facts showing that there is a genuine issue for trial” with evidence
beyond the pleadings. Celotex Corp., 477 U.S. at 324. Generally, a “mere existence
of a scintilla of evidence” supporting the nonmoving party’s case is insufficient to
defeat a motion for summary judgment. Anderson, 477 U.S. at 252.
“The applicable Rule 56 standard is not affected by the filing of cross-motions
for summary judgment.” Godard v. Ala. Pilot Inc., 485 F. Supp. 2d 1284, 1291 (S.D.
Ala. 2007). The Eleventh Circuit has explained that “[c]ross motions for summary
judgment will not, in themselves, warrant the court in granting summary judgment
2

unless one of the parties is entitled to judgment as a matter of law on facts that are
not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.
1984).
III.

BACKGROUND

The pertinent facts are lengthy, but undisputed:
A. The DirecTV Account
At some point in 2020, someone under the name of Amy Walker signed up
for DirecTV service on AT&T’s DirecTV website by completing an online
application for service. The applicant provided Plaintiff’s first and last name, social
security number, and date of birth. (Doc. 132-3 at 51–53.) The requested service
address was on East Columbia Road in Newville, Alabama, and an email address
and phone number for the applicant were provided. (Id. at 63.) An email verification
was sent to the email address provided by the applicant, and the account was verified
by an acknowledgment from the email address recipient. AT&T then sent an
installer to the service address who met with an individual who signed, illegibly,
various documents authorizing the installation. (Id. at 54, 58–62; Doc. 132-7.) Once
service began, billing statements were sent to “Amy Walker” at the service address,
and a credit card was used to make three separate payments to AT&T on the account,
two of which were later reversed. The account phone number, email address, and
service address (Newville) have never been associated with Plaintiff. (Doc. 132-5
at ¶ 8; Doc. 132-6 at ¶¶ 10–12, 27.)
On May 21, 2021, AT&T referred the account to ICS, its contracted debt
collector, for collection. With the referral, AT&T provided the name, service
address, date of birth, email address, phone number, and social security number on
the account, as well as the delinquency balance. (Doc. 123-1 at ¶¶ 11–12; Doc. 1323 at 70–72; Doc. 160-4.)
3

B. AT&T’s Contract with ICS
Under its contract with ICS, AT&T could only refer “validly due and owing
debts to [ICS] for collection.” (Doc. 123-1 at ¶ 7.) Recognizing that there may be
assertions of identity theft on some of its account referrals, the contract also
contained certain procedures regarding claims of identity theft. Among other things,
if during a phone call on a referred account someone claimed identity theft or fraud,
the ICS representative was required to direct that person to the DirecTV website
where the person could directly contact AT&T about the issue. (Doc. 132-3 at 97–
100.) AT&T would then investigate the issue from its own records.
C. ICS’s Actions
Before initiating collection activities and to confirm the accuracy of the
account information provided by AT&T concerning the account at issue, ICS
transmitted the social security number on the referred account to Innovis Data
Solutions (Innovis), the National Change of Address database, and Melissa, Inc.1
(Doc. 123-1 at ¶¶ 14–17; Doc. 160-5; Doc. 160-6.) With the social security number,
Innovis determined that the social security number belonged to an “Amy Walker”
who lived in Ozark, Alabama. (Doc. 123-1 at ¶ 17; Doc. 160-5; Doc. 160-6.) That
is the Plaintiff. (Doc. 123-1 at ¶ 17; Doc. 160-5; Doc. 160-6.)
On May 24, 2021, ICS sent a letter entitled “collection notice” to Plaintiff at
her Ozark, Alabama address. (Doc. 123-1 at ¶ 18; Doc. 160-7.) The letter informed
Plaintiff that her account had been turned over to collections and that it was not being
reported to any credit reporting agency (“CRA”) at the current time. The letter also

1

Each of these third-party vendors assist ICS in verifying that the information transmitted from
AT&T is that of the actual account holder. Innovis provides ICS with demographic information
associated with a specific social security number. (Doc. 123-1 at ¶¶ 14, 16.) Melissa, Inc. verifies
that the address provided by a creditor is properly formatted. (Id. at ¶ 15.) And the National
Change of Address database is compiled by the United States Postal Service and ensures that ICS
uses up-to-date addresses for account holders. (Id. at ¶ 16.)
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included a validation notice stating that if Plaintiff notified ICS within thirty days of
receiving the letter, ICS would then obtain verification of the debt. (Doc. 123-1 at ¶
19; Doc. 160-7.) ICS received no correspondence back from Plaintiff in response to
the letter. (Doc. 123-1 at ¶ 20.)
On May 27, 2021, an ICS representative placed a phone call to the phone
number on the account. A person answered, informing ICS that it had “the wrong
Amy Walker” and that she was not associated with an Ozark address. The ICS
representative then updated ICS’s account notes, noting that the phone number on
the account was not a number where the account debtor could be reached. (Doc.
123-1 at ¶ 21; Doc. 160-8.)
Then, on June 1, 2021, Plaintiff called ICS claiming that someone had
fraudulently used her social security number and disputing that the DirecTV account
was her account. (Doc. 123-1 at ¶ 23; Doc. 160-9.) Because Plaintiff claimed
identity theft, the ICS representative asked Plaintiff a series of questions and
provided her with DirecTV’s website address to submit a fraud claim. (Doc. 123-1
at ¶ 24; Doc. 160-10; Doc. 160-11.)

Immediately following the call, the

representative placed a 60-day “hold” on the account to allow Plaintiff time to
contact AT&T regarding her fraud claim. (Doc. 123-1 at ¶ 25.)
The DirecTV website gave directions to individuals who wanted to dispute an
account on the basis of fraud or identity theft. To investigate and resolve the dispute,
AT&T required individuals to submit a fraud package that included a certain form
of identification, two forms of proof of residency from a specified time period, and
a signed affidavit. (Doc. 132-25; Doc. 132-2 at 103–04.)
On June 10, 2021, Plaintiff again contacted ICS and informed them that she
would be sending her fraud package to AT&T over the weekend. (Doc. 123-1 at ¶
26; Doc. 160-12.) Plaintiff called ICS again on June 21, 2021, verified her name
and address, disputed the DirecTV account, and stated that her “Theft of Identity”
5

package had been received by AT&T. (Doc. 123-1 at ¶ 27; Doc. 160-13.) Plaintiff
also advised that she was going to “take out a warrant” on the person who was
stealing her identity. (Doc. 160-9 at 4.) The record does not show that Plaintiff
ever filed a theft report against the person who stole her identity.
On June 21, 2021, AT&T received a fraud package from Plaintiff. (Doc. 1323 at 103–04.) Upon receipt of the package, AT&T notified ICS that the account was
being investigated for theft of identity. (Doc. 132-3 at 80.) While Plaintiff did
include her driver’s license, birth certificate, social security card, utility bills, and
her residential lease (doc. 132-3 at 78–79, 103–104; doc. 132-25; doc. 132-26; doc.
132-15), Plaintiff did not include a signed affidavit of fraud, nor a second valid proof
of residency, (doc. 132-3 at 104–05). Plaintiff called AT&T on July 6, 2021 and
was advised of the deficiencies. (Id. at 105–106.) She then resubmitted the same
deficient fraud package documents sans the affidavit and second proof of residency
on July 21, 2021. (Doc. 132-15.)
On July 22, 2021, AT&T completed its investigation and concluded that
Plaintiff had failed to substantiate her claim of identity theft. (Doc. 132-3 at 106.)
AT&T then notified ICS that the investigation was completed and that the account
balance purportedly owed by Plaintiff “was sustained.”2 (Id. at 80.) Following
receipt of AT&T’s decision, ICS reported the account under the social security
number on file to Experian, Innovis, and TransUnion in early August 2021 as
“disputed.” (Doc. 123-1 at ¶ 28; Doc. 160-14.) This reporting was the first occasion
in which ICS reported the account to any CRA. (Doc. 123-1 at ¶ 28.)
D. ICS’s Investigation
After ICS began reporting the account to the CRAs as disputed, Plaintiff twice
disputed the account directly with Experian that August on its website. When using
2

According to ICS, when a debt has been investigated after a dispute and determined to be valid,
it is “sustained.” (See Doc. 132-2 at 106.)
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Experian’s online dispute website, consumers must select a category related to the
dispute, such as “Not Mine” or “Identity Theft,” and can provide a brief description
of the dispute. (Doc. 123-4 at ¶¶ 14–16.) Consumers who claim “Identity Theft” as
a reason for the dispute are instructed that they cannot proceed with their dispute
online and must contact Experian directly or in writing. (Id. at ¶ 17.)
On August 7, Plaintiff visited the website and selected “Not mine or No
knowledge of account” instead of “Identity Theft” on the website from a dropdown
list of possible dispute reasons and included a statement that she never lived at the
service address and that her social security number had been stolen. (Doc. 123-1 at
¶ 29; Doc. 132-6 at 2–3, 14.) Per its policy, Experian then categorized the dispute
as “Not his/hers. Provide Complete ID.” (Doc. 123-4 at ¶ 17; Doc. 132-6 at 14.) An
Automated Credit Dispute Verification (ACDV)3 was then sent to ICS that same
day. (Doc. 132-6 at 3.)
Four days later, on August 11, Plaintiff submitted a second dispute through
the Experian website, this time selecting “Other reason” from the dropdown list, not
the “Identity Theft” option, and included a similar statement as the August 7
submission. (Doc. 123-4 at ¶¶ 15–16.) Per its policy, Experian categorized this
dispute as “Consumer states inaccurate info. Provide complete ID/account info.”
(Id. at ¶ 15.) An ACDV was sent to ICS that same day. (Id. at ¶ 15.)
According to Experian, had Plaintiff selected “Identity Theft” as the dispute
reason, Experian would have required her to contact them directly by telephone or
in writing. (Id. at ¶ 17.) Experian would have also manually reviewed the dispute
by employees specifically trained to process fraud and identity theft claims. But
since Plaintiff did not select “Identity Theft” as her dispute reason, a manual review
3

An ACDV is an “indirect dispute” made by a consumer directly to a CRA, who then in turn
transmits that dispute to whomever furnished the account for investigation. (Doc. 123-13 at 111–
12.)
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was not conducted, and Experian did not inform ICS that Plaintiff’s dispute was
based on identity theft. (Id. at ¶¶ 18–19.)
ICS has a policy of closing accounts and requesting deletion of its credit
reporting tradelines for accounts that have “Identity Theft” as the dispute reason.
(Doc. 123-1 at ¶ 30.) But since Plaintiff did not select “Identity Theft” in her
Experian submission, ICS submitted the dispute through an automated review
program, comparing Plaintiff’s name, social security number, and address on the
dispute form to the information provided by AT&T. ICS then verified that its credit
reporting was accurate; that is, that the AT&T account debt was “disputed.” (Id. at
¶ 31; Doc. 123-5 at ¶ 11–12.) No ICS employee actually investigated the first
ACDV; it was examined using an automated process. (Doc. 132-4 at 254; Doc. 13228 at 2; Doc. 132-27 at ¶¶ 24–25; Doc. 132-9 at 5.)
By the time ICS received the August 2021 disputes that Plaintiff had initiated
with Experian, ICS had already ceased all collection activities. (Doc. 123-1 at ¶ 33.)
And by November 19, 2021, AT&T recalled the account from ICS. (Id. at ¶ 34;
Doc. 160-5; Doc. 160-6.) Two days later, ICS requested that Experian, Innovis, and
TransUnion delete any of ICS’s reporting of the debt associated with the account.
(Doc. 123-1 ¶ 35; Doc. 160-14.) These three credit reporting agencies apparently
did so. Still unsatisfied, Plaintiff filed this lawsuit on May 16, 2022.
A. FCRA

IV.

DISCUSSION

Plaintiff contends that ICS’s reporting of the very existence of the account to
the CRAs, even as a disputed account, violated the FCRA because the account was
fraudulent and because she had denied owning the account to AT&T, ICS, and
Experian. In particular, Plaintiff alleges that ICS violated FCRA by failing to fully
and properly investigate her fraudulent account claim and in failing to review all
relevant information provided by the CRAs. (Doc. 1 at ¶¶ 86–96.)
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In its summary judgment motion, ICS raises two arguments. First, it argues
that Plaintiff’s dispute about ICS’s reporting of the account constitutes an
unactionable “legal dispute,” and not an actionable “factual inaccuracy.” (Doc. 123
at 13.) Second, ICS argues that since Plaintiff “did not even qualify for a credit
score, . . [ICS]’s verifications . . . did not cause her claimed damages.” (Id. at 2.)
Plaintiff has moved for partial summary judgment, arguing that ICS did not conduct
a reasonable investigation as a matter of law. (Doc. 125 at 1.)
Congress enacted FCRA “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). It governs CRAs such as Experian or
TransUnion, and “furnishers,” that is, those entities that supply consumer
information to CRAs such as ICS. See Hunt v. JPMorgan Chase Bank, N.A., 770 F.
App’x 452, 453 (11th Cir. 2019) (per curiam). When a consumer disputes the
completeness or accuracy of information provided by a furnisher to a CRA, the
furnisher must (1) conduct an investigation of the disputed information; (2) review
all relevant information provided by the CRA; and (3) report the results of the
investigation to the CRA. See 15 U.S.C. § 1681s-2(b)(1). If the investigation reveals
that the furnished information to the CRA is inaccurate, incomplete, or cannot be
verified, the furnisher must either modify, delete, or permanently block reporting of
that information. See id. § 1681s-2(b)(1)(E).
The Eleventh Circuit has made clear that “[a] plaintiff must show a factual
inaccuracy rather than the existence of disputed legal questions to bring suit against
a furnisher under § 1681s-2(b).” Hunt, 770 F. App’x at 458 (citing Chiang v. Verizon
New Eng. Inc., 595 F.3d 26, 38 (1st Cir. 2010)). In Hunt, for example, the consumer
argued that the furnisher incorrectly reported a twenty-two-month delinquency on
the consumer’s loan because he believed “the filing of [a] Foreclosure Action and
acceleration of the loan relieved [the consumer] of any obligation to make monthly
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payments.” Id. The Eleventh Circuit was unpersuaded by this argument and held
that, even if the consumer was correct, the furnisher’s “purported legal error was an
insufficient basis for a claim under the FCRA.” Id. In other words, a legal dispute
cannot support a claim under FCRA. See id.
The Middle District of Florida dealt with a similar fraudulent account issue in
Uppal v. Wells Fargo Bank, N.A., No 8:19-cv-1334-T-02JSS, 2020 WL 6150923, at
*2 (M.D. Fla. Oct. 20, 2020) (citing Chiang, 595 F.3d at 38). See also Creel v.
Equifax, No. 1:20-cv-1960-CC-WEJ, 2020 WL 9595385 at *4–5 (N.D. Ga. Aug. 12,
2020), report and recommendation adopted, Creel v. Equifax No. 1:20-cv-1960-CCWEJ, 2020 WL 9595382 (N.D. Ga. Nov. 9, 2020) (dismissing FCRA claim where
plaintiff alleged that he did not have a contract with creditor and the debt was not
valid). There, a consumer sued the creditor claiming that the creditor had forged a
loan in the consumer’s name, had improperly foreclosed on her property, and then
had failed to investigate her dispute of the creditor’s reporting on the account.
Uppal, 2020 WL 6150923 at *1. The district court observed that proof of a factual
inaccuracy is a necessary element of a FCRA claim, and “[w]hen a plaintiff merely
asserts a legal challenge to the validity of an existing debt, the plaintiff fails to
demonstrate a factual inaccuracy in the furnisher’s report of that debt.” Id. at *2.
When addressing the merits, the district court noted that the plaintiff “bases the
FCRA claim on her belief the note is a forgery” and “even present[ed] several
forensic reports as evidence of the note’s alleged forgery,” but “this [was] an
improper basis for a claim under § 1682s-2(b) [because] the [p]laintiff’s forgery
argument is a legal defense to the debt, rather than a factual inaccuracy in
Defendant[]’s reporting.” Id. at *2 (emphasis added).
The dispute at the heart of this action is one of debt enforceability and validity.
It is factually accurate that a DirecTV account was opened in Plaintiff’s name and
using her social security number and date of birth. Plaintiff does not dispute those
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facts nor does she dispute the balance on the account. Instead, she disputes its
enforceability against her because she did not open the account; that is, it was a
fraudulent account because she was the victim of identity theft. AT&T investigated
her assertion and concluded that the debt was valid, and then communicated this
finding to ICS.
Plaintiff insists that ICS violated FCRA in its investigation of Plaintiff’s
dispute as evidenced by its failure to independently conclude that the account was
fraudulent and that Plaintiff was not responsible for the debt and therefore should
have “correct[ed] its mistake” and requested that the information be deleted. (Doc.
125 at 19.) But Plaintiff’s arguments ignore the fact that AT&T, as the creditor, was
in the best position to determine whether the account was fraudulent and that ICS
had no right to “relieve [Plaintiff] of [her] obligation to [AT&T].” Brill v.
TransUnion, No. 15-cv-300-slc, 2015 WL 9095103 at *4 (W.D. Wis. Dec. 16,
2015), aff’d 838 F.3d 919 (7th Cir. 2016). And further, these arguments ignore the
fact that AT&T never notified ICS during the initial reporting and dispute process
that the debt was inaccurate, invalid, or unenforceable against Plaintiff, and even
after Plaintiff directly supplied AT&T with evidence that she believed showed she
was a victim of identity theft. Instead, once it was in receipt of Plaintiff’s dispute
and after AT&T had affirmed the validity of the debt, ICS reported to the CRAs that
the account was disputed, a true representation of the account status given the
contrasting positions of Plaintiff and AT&T. (Doc. 123-1 at ¶ 28; Doc. 160-14.)
Plaintiff’s assertion of fraud is a legal defense to the enforceability and
validity of the AT&T debt rather than a factual inaccuracy in ICS’s reporting.4 The
4

A factual inaccuracy “includes inaccurate amounts, tradeline items not immediately removed
once vacated, and inaccurately updated loan terms, whereas legal inaccuracies include the validity
of a debt or a dispute regarding to whom the debt was assigned.” Juarez v. Experian Info. Sols.,
Inc., No. 19-c-7705, 2020 WL 5201798, at *3 (N.D. Ill. Aug. 31, 2020) (alterations adopted)
(citation omitted).
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facts of the case here show that ICS reported the account as disputed. Because
Plaintiff is really attempting to attack collaterally the information which underlies
the credit report, she has failed to provide sufficient evidence showing that a
reasonable investigation would have revealed that ICS was inaccurately reporting
the account. Her FCRA claim therefore fails and ICS is entitled to summary
judgment.5 For the same reasons, Plaintiff’s motion for summary judgment will be
denied.
B. FDCPA Claim
Plaintiff alleges that ICS violated 15 U.S.C. § 1692e of the FDCPA because
ICS sent her a letter on May 24, 2021 falsely stating that Plaintiff owed a debt on the
AT&T account and that this letter “was a false representation of the character,
amount, and legal status of a debt.” (Doc. 1 at ¶¶ 101–02.) ICS argues that it is
entitled to summary judgment under the FDCPA’s bona fide error defense.
The bona fide error defense provides:
A debt collector may not be held liable in any action brought under this
subchapter if the debt collector shows by a preponderance of evidence
that the violation was not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably adapted to
avoid any such error.
15 U.S.C. § 1692k(c) (emphasis added). To be afforded the defense, a debt collector
bears the “burden of showing that its FDCPA violation (1) was not intentional; (2)
was a bona fide error; and (3) occurred despite the maintenance of procedures
reasonably adapted to avoid any such error.” Owen v. I.C. System, Inc., 629 F.3d
1263, 1271 (11th Cir. 2011) (quoting Edward v. Niagara Credit Sols., Inc., 584 F.3d
1350, 1352–53 (11th Cir. 2009)) (quotation marks omitted).

5

The Court pretermits discussion of the damages issue.
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1. May 24, 2021 Letter
Plaintiff claims that the May 24, 2021 letter violated the FDCPA. This letter
was entitled “Collection Notice” and contained the following information: (1)
Plaintiff had a delinquent account with AT&T that had been referred to ICS for
collection; (2) ICS had scheduled the debt for reporting to the CRAs; (3) ICS would
not submit the account until a thirty-day time period expired; (4) Plaintiff could pay
the account balance by sending a payment to ICS; and (5) ICS would assume the
debt was valid if Plaintiff did not notify ICS in writing within thirty-days of receiving
the letter that the debt was disputed. The letter also stated that if Plaintiff felt she
had been a victim of identity theft she should call AT&T directly.
As applicable to the bona fide error defense, ICS argues that there is no
evidence that ICS intentionally violated the FDCPA in sending the letter because the
evidence demonstrates that AT&T maintained that Plaintiff was liable on the
account, even after she claimed fraud and identity theft. (Doc. 123 at 25–26, n.9.)
Plaintiff disagrees with this, stating it was intentional because none of her true
contact information was included in the account data ICS received from AT&T and
was only found through skip tracing procedures. (Doc. 154 at 27 n.10.)
The Court agrees with ICS that the evidence demonstrates it did not
intentionally violate the FDCPA here because an account was opened in Plaintiff’s
name with her social security number and her date of birth and AT&T referred the
account to ICS under a contractual representation that the debt was valid and owing.
ICS sent Plaintiff the initial collection notice using the address it received when it
queried Plaintiff’s social security number with its third-party vendors. No evidence
has been provided showing that ICS intended to violate the FDCPA when it sent this
letter to the Plaintiff at her residential address. “A debt collector need only show
that its FDCPA violation was unintentional, not that its actions were unintentional.”
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Kort v. Diversified Collection Servs., Inc., 394 F.3d 530, 537 (7th Cir. 2005).
Accordingly, ICS has sufficiently shown that it did not intend to violate the FDCPA
when it sent the May 24, 2021 letter to Plaintiff.
Plaintiff does not challenge whether ICS’s action in sending the collection
letter was a “bona fide error.” As such, it will be presumed that any violation of the
FDCPA in sending the letter was “made in good faith[,]” meaning it was a bona fide
error under 15 U.S.C. § 1692k(c). Kort, 394 F.3d at 538 (quoting Black’s Law
Dictionary 168 (7th ed. 1999) (defining “bona fide” as “1. Made in good faith;
without fraud” and “2. Sincere; genuine”)).
This leaves for consideration the third factor—whether the violation occurred
despite the maintenance of procedures reasonably adapted to avoid any such error.
The Eleventh Circuit has stated that the furnisher must show that it has maintained
procedures that are reasonably adapted to avoid readily discoverable errors. Owen,
629 F.3d at 1276–77.
ICS first points to its contract with AT&T that requires the referral for
collection of only debts that are due and owing. ICS has also presented evidence
showing that it has procedures in place and that these procedures include the use of
third-party vendors to ensure the information provided by AT&T is verified and
accurate. Not applicable here but worth noting, ICS also performs bankruptcy scrubs
on all information received from AT&T to ensure that a debt has not been discharged
through bankruptcy. (Doc. 123-1 at ¶ 9.) All of this occurs before ICS attempts to
make its first contact with a consumer or reports a debt to any CRA. Put another
way, ICS takes information from AT&T, transmits that same information to thirdparty vendors for verification, then uses information from the third-party vendors to
contact a debtor. All well and good. In addition, ICS has presented evidence showing
that it trains its employees on how to deal with consumers who claim that their
referred AT&T accounts are the result of identity theft. Based on this, and the other
14

evidence in the record, ICS has met its low threshold of showing that it maintained
procedures to avoid errors. See Owen, 629 F.3d at 1274. But was the purported
error readily discoverable?
Turning to the reasonably adapted procedures component, Plaintiff argues
that ICS “did not run any checks to determine if the [social security] number
provided with the [a]ccount was fraudulent.” (Doc. 125 at 3.) But Plaintiff does not
inform ICS nor the Court on what type of “check” would have revealed a readily
discoverable error between the information ICS received by AT&T and the
information received from Innovis. And that is because identity theft involves the
mimicking of another person’s identifying demographic information for the purpose
of committing fraud. See Black’s Law Dictionary (11th ed. 2019) (defining identity
theft). A person engaging in identity theft would be using valid identifiers for the
purposes of stealing, like a person’s name, date of birth, and social security number.
However, ICS has not shown, at the present stage, how its procedures were
tailored to prevent collections on accounts associated with identity theft prior to
sending am initial collection notice.

Here, ICS merely referred the account

information from AT&T (which included the Plaintiff’s social security number and
date of birth) to Innovis, who—because it was Plaintiff’s actual demographic
information used to open the account—identified Plaintiff as the person associated
with the account. ICS ignored, or at least did not find it relevant, that the account
address and phone number it received from AT&T did not match the address and
phone number it received from Innovis.
Whether ICS had procedures reasonably adapted to prevent readily
discoverable errors on the AT&T account is a close call. There is undisputed
evidence that ICS trains employees on how to advise consumers who claim identity
theft and that it maintains pre-collection procedures to verify the proper mailing
address and phone number for consumers with delinquent accounts. However, there
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is also evidence that this “training” does not become relevant until after ICS has
made initial contact with a consumer informing them of a delinquent balance, like
the May 24, 2021 letter, and the “training” is to merely refer the consumer to AT&T
DirecTV’s website to pursue their dispute there, as their contractual obligation
requires them to do. And despite discrepancies between the account address and
phone number and Plaintiff’s verified address and phone number received from
Innovis, ICS still sent a letter without doing more. At this point, there are simply
insufficient facts to support a finding, as a matter of law, that ICS has a pre-collection
procedure that is reasonably adapted to discover accounts opened as a result of
identity theft.

There were two facial discrepancies between the information

transmitted by AT&T and that received from Innovis in the mismatched mailing
address and phone number. And while ICS may have an explanation for why the
account address and Plaintiff’s address did not match, there is no explanation
regarding the mismatched phone number.
The discrepancies, when examined in the light most favorable to Plaintiff,
show that a genuine dispute of material fact exists as to whether ICS maintained
procedures that were reasonably adapted to avoid readily discoverable errors on the
account. Summary judgment is therefore inappropriate.
2. Other Alleged Violations
In her opposition to summary judgment, Plaintiff claims that ICS also violated
the FDCPA by continuing to report the account to Experian (doc. 154 at 30–31) after
she had disputed the account with Experian. In addition to the bona fide error
defense, ICS makes a more fundamental challenge to this claim.
ICS first urges the Court to ignore the credit reporting allegations because
Plaintiff never pled them in her complaint and never directly mentioned them in her
interrogatory answers that asked pointed questions about what conduct constituted
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an FDCPA violation. (Doc. 169 at 15–16.) Instead, the only reference to the credit
reporting and the FDCPA was Plaintiff’s assertion that ICS violated the FDCPA
“[e]ach time that [ICS] received a dispute from a credit reporting agency through
which Plaintiff disputed the debt and [ICS] reported that the debt belonged to the
Plaintiff.” (Doc. 169-1.) While her interrogatory answers and complaint are
somewhat vague, they sufficiently put ICS on notice that she was claiming that ICS
violated the FDCPA in reporting the account to the CRAs after she had disputed the
account with Experian. Regardless, Plaintiff’s FDCPA claims fail on this set of
allegations anyway.
ICS argues that it was merely following the requirements of the FCRA when
it responded to Experian after Plaintiff had filed disputes with Experian and therefore
these FCRA obligations cannot simultaneously constitute an FDCPA violation.
(Doc. 123 at 30–31.) The Court agrees. “While the FDCPA governs a debt
collector’s verification of a disputed debt to a consumer . . ., a different statute—the
FCRA—governs a debt collector’s verification of a disputed debt to a credit
reporting agency.” McIvor v. Credit Control Servs., Inc., 987 F. Supp. 2d 968, 971
(D. Minn. 2013), aff’d 773 F.3d 909 (8th Cir. 2014) (alterations adopted) (citation
omitted). It “makes little sense to view the FCRA verification as a prohibited attempt
at debt collection in violation of the FDCPA.” Id. (alterations adopted) (citation
omitted). ICS was not acting on its own initiative, but in response to a notice sent
by Experian. And the debt collector is responding to that notice to avoid violating
FCRA, not to collect a debt. See 15 U.S.C. § 1681s-2(b)(1)(C) (“After receiving
notice [from a CRA] of a dispute with regard to the completeness or accuracy of any
information provided by a person to a [CRA], the person shall . . . report the results
of the investigation to the [CRA].”) Thus, Plaintiff’s attempts to create a FDCPA

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violation based on ICS’s actions in responding to Experian’s dispute notices will not
support an FDCPA cause of action here.6
In her opposition brief, Plaintiff also appears to vaguely implicate several June
2021 phone calls she made to ICS. ICS argues that Plaintiff did not plead this in her
Complaint. Upon review of the Complaint, it is apparent that Plaintiff did not
include allegations stemming from her June 1, June 10, or June 21 phone calls in
Count Five and she did not address them in her factual allegations. As such, to the
extent Plaintiff now argues that the contents of those phone calls were violations of
the FDCPA, those calls are not actionable. And since the phone calls were not pled
in the Complaint, and are only now implicated at summary judgment, albeit vaguely,
the Court will not rewrite the Complaint to allow an FDCPA violation related to the
June phone calls to go forward. See Gilmour v. Gates, McDonald and Co., 382 F.3d
1312, 1315 (11th Cir. 2004) (“At the summary judgment stage, the proper procedure
for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed.
R. Civ. P. 15(a). A plaintiff may not amend her complaint through argument in a
brief opposing summary judgment.”).
V.

CONCLUSION

Accordingly, it is ORDERED as follow:
1. Defendant’s Motion for Summary Judgment (doc. 123) is GRANTED IN
PART and DENIED IN PART;
2. As to Count Four, Defendant’s Motion for Summary Judgment (doc. 123) is
GRANTED;
3. As to Count Five, Defendant’s Motion for Summary Judgment (doc. 123) is
DENIED as to the May 24, 2021 letter;

6

Plaintiff has not made similar claims with respect to any communications with any other CRA.
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4. To the extent Defendant moves for summary judgment with respect to the
remaining Count Five claims, Defendant’s Motion for Summary Judgment
(doc. 123) is GRANTED;
5. Plaintiff’s Motion for Partial Summary Judgment (doc. 124) is DENIED.
DONE, on this the 28th day of March 2024.

R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE

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