Berry v. First State Bank of DeKalb County Inc et al

Filing 59

MEMORANDUM OPINION. Signed by Judge Karon O Bowdre on 3/23/2020. (JLC)

FILED
2020 Mar-23 PM 03:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
ANITA BERRY,
Plaintiff,
v.
EQUIFAX INFORMATION
SERVICES LLC,
Defendant.

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Case No. 4:18-CV-356-KOB

MEMORANDUM OPINION
This matter comes before the court on Plaintiff Anita Berry’s “Motion for Partial
Summary Judgment,” (doc. 37), and Defendant Equifax Information Services LLC’s “Motion for
Summary Judgment,” (doc. 40). Ms. Berry argues that Equifax has effectively admitted to
negligence under the Fair Credit Reporting Act, while Equifax argues that Ms. Berry has not
shown that Equifax caused her any damages or engaged in legally actionable wrongdoing. For
the reasons stated below, the court DENIES both motions.
I.

Factual Background
In 2007, Ms. Berry and her husband applied for and received a mortgage loan from First

State Bank of Dekalb County. (Doc. 1 at 3). Ms. Berry failed to make payments on the
mortgage in June and July of 2017 but made a $900 payment in August of 2017 that relieved all
delinquencies. In September of 2017, Ms. Berry paid off the entirety of the mortgage loan. In a
deposition, a representative for First State Bank testified that, in September 2017, First State
Bank reported to Equifax, a credit reporting agency, that Ms. Berry’s loan payments were up to
date. (Doc. 37-2 at 12).

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In either December 2017 or January 2018, Ms. Berry applied for a new mortgage loan to
buy a new home. Beverly Starnes, the loan officer, ran a credit check and the credit report
provided by Equifax inaccurately stated that Ms. Berry was 60 days delinquent on her previous
mortgage as of September 2017, rather than as of August 2017. On January 31, 2018, Ms.
Starnes denied Ms. Berry a mortgage loan.
Ms. Starnes testified in a deposition that when a mortgage applicant has a 60-day late
payment, the applicant typically will have to wait until more than 12 months from the date of the
60-day late payment to obtain a mortgage. (Doc. 37-3 at 39). Ms. Starnes stated that she denied
Ms. Berry a mortgage because of the reported September 60-day late payment. (Id. at 44).
However, she went on to state that she would still have denied the application if the 60-day late
payment had been reported accurately for August based on missed payments in June and July,
rather than inaccurately for September based on missed payments in July and August. (Id. at
45).
On January 31, 2018, Ms. Berry wrote to Equifax to dispute the information in her credit
report that indicated that she was 60 days delinquent on her previous mortgage as of September
2017. Ms. Berry attached information showing that she had paid off the mortgage in September
2017, and thus she was not 60 days late on the mortgage as of September 2017. Equifax
outsourced Ms. Berry’s letter to a separate company in India called Intelenet. (Doc. 39-9 at 6–7).
An Intelenet employee named Umesh Tripathi processed Ms. Berry’s letter and decided that Ms.
Berry was disputing the current balance of the mortgage as stated on her credit report, rather than
the late payment status for September 2017. (Id. at 8, 13).
In her deposition, Equifax’s corporate representative Celestina Govin stated that Mr.
Tripathi’s failure to include a late-payment element in the dispute was an error and that he should

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have done more. (Id. at 13). Ms. Govin also admitted that a 60-day late notation is an adverse
item on a credit report that can affect a consumer’s credit. (Doc. 39-9 at 13). She stated that
Equifax did not send Ms. Berry’s dispute to First State Bank for reverification, which was a
mistake. (Doc. 39-9 at 14).
On February 8, 2018, Equifax sent Ms. Berry a letter stating that it had reinvestigated her
dispute. (Id.). Ms. Govin clarified that reinvestigation did occur and that Equifax did not think
that Ms. Berry’s dispute was “frivolous or irrelevant.” (Id. at 15). However, Equifax did not
remove the erroneous 60-day late notation. (Id.). Further, Equifax did not contact First State
Bank so that it could conduct an investigation. (Doc. 37-2 at 13–15). Ms. Govin stated that it is
Equifax’s policy not to reach out to information-furnishing bodies like banks when a dispute is
merely “cosmetic” and deals with whether an account has a zero balance, though it does send
notice for correctly flagged late-payment disputes. (Id. at 17–18).
Ms. Berry testified in a deposition that Equifax’s wrong-doing caused her to lose the
home loan that she sought in January 2018. (Doc. 37-4 at 44). She testified that she was not
seeking to recover from Equifax for any other loss of credit. (Id.). Ms. Berry stated that backing
out of the deal with the sellers of the house caused her “humiliation and embarrassment.” (Id.).
Ms. Berry also stated in her deposition that, at that moment, she could not think of other “mental
and emotional pain and anguish [she hadn’t] already mentioned” that she could attribute to
Equifax. (Id.). Ms. Berry later testified that the “loss of the house” she was attempting to buy
and the knowledge that her husband was worrying about her future affected her sleep, her
appetite, and her nerves. (Doc. 37-4 at 52–53).
Ms. Berry stated in responses to interrogatories and in a later affidavit, however, that
Equifax’s actions in generating an inaccurate report and failing to properly investigate her

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dispute, even other than the loss of the mortgage, caused her physical and emotional harm
characterized by insomnia, anxiety, stress, loss of appetite, and tension headaches. (Doc. 44-1 at
3). She stated in her affidavit that the only reason she had not been more clear about those
damages in her deposition was that she was not specifically asked about her damages outside of
the loss of the mortgage.
Ms. Berry also filed an affidavit from her daughter. (Doc. 44-2). Ms. Berry’s daughter
stated that she witnessed how upset and “despondent” Ms. Berry was upon receiving the letter
from Equifax denying any error in her credit report. (Doc. 44-2 at 3). Ms. Berry’s daughter
stated that the incident caused her mother so much stress and anxiety that she feared Ms. Berry
might have a heart attack. Ms. Berry’s daughter said that, upon receipt of the letter, Ms. Berry
worried that Equifax’s failure to investigate and correct her credit report would keep her from
buying a house before her husband passed away.
Ms. Berry filed this lawsuit against Equifax and First State Bank pursuant to the FCRA,
although Ms. Berry later voluntarily dismissed her claims against First State Bank. (Doc. 1; doc.
25). Ms. Berry alleges that Equifax’s actions negatively reflected on her, “caused or contributed
to cause her to be denied a mortgage loan” and lose other credit, and caused her “mental and
emotion pain and anguish.” (Doc. 1 at 5–6). Ms. Berry alleges that Equifax violated 15 U.S.C.
§ 1681e(b) by failing to establish or follow reasonable procedures to assure accurate credit
reporting. Further, Ms. Berry alleges that Equifax violated 15 U.S.C. § 1681i(a)(1)(A) by failing
to delete inaccurate information, failing to conduct an appropriate reinvestigation, failing to
forward relevant information to First State Bank, failing to maintain reasonable procedures, and
relying on information from an unreliable source. Ms. Berry asserts that Equifax was either
willful under 15 U.S.C. § 1681n or negligent under § 1681o.

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II.

Standard of Review
Summary judgment allows a trial court to decide cases that present no genuine issues of

material fact such that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56. When a district court reviews a motion for summary judgment, it must determine two
things: whether any genuine issues of material fact exist, and, if not, whether the moving party is
entitled to judgment as a matter of law. Id.
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56).
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not
significant unless the disagreement presents a “genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). But, inferences can create genuine issues of
material fact. Carlson v. FedEx Ground Package Systems, Inc., 787 F.3d 1313, 1318 (11th Cir.
2015).
In response, the non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The non-moving party must “go beyond the pleadings and by [its]
own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’

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designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at
324 (quoting Fed. R. Civ. P. 56(e)) (emphasis added).
The court must “view the evidence presented through the prism of the substantive
evidentiary burden,” to determine whether the non-moving party presented sufficient evidence
on which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 254. The
court must refrain from weighing the evidence and making credibility determinations because
these decisions belong to a jury. See id. at 255.
Further, all evidence and inferences drawn from the underlying facts must be viewed in
the light most favorable to the non-moving party. Graham v. State Farm Mut. Ins. Co., 193 F.3d
1274, 1282 (11th Cir. 1999). After both parties have addressed the motion for summary
judgment, the court must grant the motion only if no genuine issues of material fact exist and
if the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56.
III.

Discussion
a. Ms. Berry’s Motion for Partial Summary Judgment
In her motion for partial summary judgment, Ms. Berry argues that no issue of material

fact exists regarding Equifax’s negligence under § 1681o for failing to conduct an appropriate
investigation of her credit dispute, in violation of § 1681i(a). (Doc. 37). Ms. Berry asserts that
Equifax’s policy of not sending some disputes to the furnishers of information—in this case First
State Bank—violated the FCRA’s requirement that credit reporting agencies perform a
“reasonable reinvestigation” of disputes. She argues that Equifax admits that Mr. Tripathi
negligently mishandled Ms. Berry’s dispute and failed to provide First State Bank with
information regarding the dispute. Ms. Berry admits that the issues of willfulness and damages
should be submitted to a jury.

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Equifax filed a response, arguing that Ms. Berry cannot make the requisite showing of
damages or causation to show liability for a violation of § 1681i(a) because her mortgage
application would have been denied regardless of its conduct. (Doc. 46). Equifax also asserts
that its allegedly negligent reinvestigation took place after Ms. Berry’s mortgage application was
denied, so the reinvestigation could not have caused the denial.
Ms. Berry did not file a reply.
The purpose of the FCRA is to make sure “that consumer reporting agencies adopt
reasonable procedures for meeting the needs of commerce for consumer credit […] and other
information in a manner which is fair and equitable to the consumer, with regard to the
confidentiality, accuracy, relevancy, and proper utilization of such information.” 15 U.S.C. §
1681(b). “The FCRA creates a private right of action against consumer reporting agencies for
the negligent, see 15 U.S.C. § 1681o, or willful, see 15 U.S.C. § 1681n, violation of any duty
imposed under the statute.” Collins v. Experian Info. Sols., Inc., 775 F.3d 1330, 1333 (11th
Cir.), on reh'g sub nom. Collins v. Equable Ascent Fin., LLC, 781 F.3d 1270 (11th Cir. 2015); 15
U.S.C. §§ 1681n, 1681o. Sections 1681n and 1681o “allow recovery for actual damages and
attorneys' fees and costs, as well as punitive damages in the case of willful noncompliance.”
Heupel v. Trans Union LLC, 193 F. Supp. 2d 1234, 1238–39 (N.D. Ala. 2002); 15 U.S.C. §§
1681n, 1681o.
Section 1681i(a)(1)(A) of the FCRA provides:
[I]f 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, or indirectly through a reseller, of such
dispute, the agency shall, free of charge, 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 […] before the
end of the 30-day period beginning on the date on which the agency receives the
notice of the dispute from the consumer or reseller.
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15 U.S.C. § 1681i(a)(1)(A).
The credit reporting agency must notify the data furnisher within five business days of
“all relevant information regarding the dispute” that the credit reporting agency has received
from the consumer. Id. § 1681i(a)(2). The credit reporting agency then must review and
consider the information submitted about the dispute, promptly delete or modify inaccurate
information, and promptly provide the consumer with notice of the results of the reinvestigation.
Id. § 1681i(a)4–6. However, the credit reporting agency can terminate a reinvestigation of a
dispute if it finds that the dispute is “frivolous or irrelevant,” though the agency must give notice
to the consumer of such a determination. Id. § 1681i(a)(3).
The FCRA does not make consumer reporting agencies strictly liable for all inaccuracies,
but instead creates a private right of action only for negligent or willful violations of the FCRA.
Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir. 1991); see 15 U.S.C.
§§ 1681n(a), 1681o(a). Because liability is not strict, the failure to produce evidence of damages
resulting from an FCRA violation in a case alleging negligent violation of the FCRA “mandates
summary judgment.” Nagle v. Experian Info. Sols., Inc., 297 F.3d 1305, 1306–07 (11th Cir.
2002). The burden is on the plaintiff to show that the defendant’s FCRA violations caused the
plaintiff damages. See Jackson v. Equifax Info. Servs., LLC., 167 F. App'x 144, 146 (11th Cir.
2006) (holding that the plaintiff had not shown that an inaccurate report caused his denial of
credit).
While the court notes without deciding that it appears that Equifax may have negligently
failed to comply with the requirements of § 1681i(a) in this case, Ms. Berry nonetheless fails to
show that she is entitled to summary judgment on the matter because a genuine issue of material
fact remains regarding whether she can show that she suffered damages caused by Equifax. Ms.
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Berry’s motion fails in large part because the court agrees with Equifax that Ms. Berry cannot
rest a claim for relief under the FCRA on the denial of her mortgage in January 2018.
As an initial matter, Equifax correctly points out that any failure to perform an adequate
reinvestigation of Ms. Berry’s credit dispute as required by § 1681i(a) could not have caused the
denial of Ms. Berry’s mortgage application. Ms. Starnes denied Ms. Berry’s mortgage
application at the end of January 2018, which prompted Ms. Berry to send a dispute letter to
Equifax. Equifax did not send its letter reporting no inaccuracies in Ms. Berry’s credit report to
her until February 2018. Therefore, no causal relationship can exist between Equifax’s
reinvestigation responsibilities under § 1681i(a) and the denial of Ms. Berry’s mortgage in
January 2018.
Additionally, testimony from Ms. Starnes establishes that she would have had to deny
Ms. Berry’s mortgage application based on her 60-day late status even if it had been correctly
reported for August instead of incorrectly reported for September. (Doc. 37-3 at 39); (Id. at 45).
So, even if the credit report produced by Equifax had been accurate, Ms. Starnes would have
denied Ms. Berry’s mortgage application. Accordingly, Ms. Berry cannot show that the loss of
the mortgage loan—or any emotional or physical distress caused by that loss—constituted actual
damages attributable to Equifax, as she could not have obtained the loan regardless of Equifax’s
reinvestigation obligations. Ms. Berry, therefore, cannot use the denial of her mortgage
application to show damages or causation for her negligence claim under § 1681o for violations
of § 1681i(a).
However, the record before the court shows that the loss of the mortgage and attendant
distress were not the only damages that Ms. Berry asserted. Sworn testimony from both Ms.
Berry and her daughter states that the receipt of Equifax’s letter denying any inaccuracies in Ms.

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Berry’s credit report independently caused Ms. Berry physical and emotional distress outside of
the loss of the mortgage. Ms. Berry argues that these assertions of emotional and physical
distress suffice to show damages and to allow the court to grant summary judgment; Equifax
argues that Ms. Berry’s assertions of physical and emotional distress are self-serving,
unsubstantiated, and not credible.
When ruling on a motion for summary judgment, the court must view all evidence and
inferences in the light most favorable to the non-moving party. Graham, 193 F.3d at 1282;
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (stating that, at the
summary judgment stage, courts must credit the nonmoving party’s version of disputed facts,
even if the evidence is of questionable veracity, because credibility determinations are the
province of the jury). In assessing Ms. Berry’s motion, the court views the evidence in the light
most favorable to Equifax.
In her deposition testimony, Ms. Berry strongly indicated that the only damages that she
was seeking to recover were related to the loss of her mortgage. Specifically, she stated in her
deposition that she was not seeking to recover for any other loss of credit, that backing out of the
deal with the people selling her prospective home caused her humiliation, and that the loss of the
prospective house caused her symptoms of physical and emotional distress. (Doc. 37-4 at 44;
52-53). Further, she stated that she could not think of any other damages for which she wished
to recover from Equifax. (Id. at 44). Although Ms. Berry also produced other evidence in the
form of affidavits that asserted that she suffered damages specifically based on Equifax’s failure
to adequately reinvestigate her credit dispute, the implication of her deposition testimony—when
viewed in the light most favorable to Equifax—provides sufficient evidence on which a jury
could reasonably find for Equifax. Anderson, 477 U.S. at 254.

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At the summary judgment stage, this court cannot decide whether Ms. Berry made the
necessary showing of damages stemming from Equifax’s alleged violations of § 1681i(a)
because the issue rests on a credibility determination that must go to the jury. Id. at 255;
Feliciano, 707 F.3d at 1252. Thus, a genuine issue of material fact regarding whether Ms. Berry
established the necessary damages to support liability under § 1681o precludes judgment as a
matter of law. See Fed. R. Civ. P. 56. Accordingly, the court DENIES Ms. Berry’s motion for
partial summary judgment.
b. Equifax’s Motion for Summary Judgment
In its own motion for summary judgment, Equifax argues that the court should grant it
summary judgment on the entirety of Ms. Berry’s complaint because the evidence does not
support a finding of liability. (Doc. 40). Equifax makes multiple arguments for summary
judgment, which the court addresses in turn.
1. Failure to Show Damages
Equifax begins its motion for summary judgment by arguing the logical extension of its
response to Ms. Berry’s motion for partial summary judgment: Ms. Berry cannot show damages
or causation to support any of her FCRA claims because she would not have received the
mortgage at issue even without an inaccuracy on her credit report. (Doc. 40). Equifax goes on to
assert that Ms. Berry’s claimed emotional damages are speculative and unsupported by credible
evidence.
Ms. Berry filed a response in opposition, in which she argues that the court should focus
on the inaccuracy in her credit report, not whether an August or September 60-day late payment
would have made a practical difference. (Doc. 44). She asserts that Equifax’s conduct damaged
her beyond just the denial of the mortgage and that whether she experienced damages is a

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question for the jury. She also argues that she need not show actual damages to recover for
willful conduct. Ms. Berry included affidavits from herself and her daughter along with her
response, asserting that she experienced emotional and physical distress directly because of
Equifax’s actions.
Equifax filed a reply arguing that, contrary to Ms. Berry’s response and the evidence she
attached, all of her alleged damages arose from the denial of her mortgage application in January
2018—not its conduct. (Doc. 47).
As discussed above, § 1681i(a) of the FTCA requires consumer reporting agencies to
conduct specifically dictated reinvestigations of consumer credit disputes. 15 U.S.C. § 1681i(a).
Section 1681e(b) of the FTCA requires that consumer reporting agencies preparing consumer
reports “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).
To recover under § 1681o for negligent violation of either § 1681i(a) or § 1681e(b), a
plaintiff must show evidence of damages caused by the defendant’s violation of the FCRA.
Nagle, 297 F.3d at 1306–07; Heupel, 193 F. Supp. 2d at 1239. Further, “[a]ctual damages may
include mental distress, even in the absence of out-of-pocket expenses.” Younger v. Experian
Info. Sols., Inc., No. 2:15-CV-00952-SGC, 2017 WL 5465527, at *5 (N.D. Ala. Sept. 22, 2017)
(citing Thomas v. Gulf Coast Credit Servs., Inc., 214 F. Supp. 2d. 1228, 1235 (M.D. Ala. 2002);
Jordan v. TransUnion, LLC, 2006 WL 1663324, at *7 (N.D. Ga. Jun. 12, 2006)). Where a
violation of the FCRA is willful, however, the FCRA provides for statutory damages, attorneys'
fees, costs, and other forms of relief without requiring a showing of actual damages. 15 U.S.C. §
1681n; Levine v. World Fin. Network Nat. Bank, 437 F.3d 1118, 1124–25 (11th Cir. 2006).

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Because of the specific lens through which courts must view motions for summary
judgment, the same weakness that doomed Ms. Berry’s motion for partial summary judgment—a
credibility issue—thwarts Equifax’s first argument for summary judgment. Just as the court
viewed the evidence in the light most favorable to Equifax above, in this context the court must
view the evidence in the light most favorable to Ms. Berry, the nonmovant. Graham, 193 F.3d at
1282. Viewing the evidence in the light most favorable to Ms. Berry, she has established a
genuine issue of material fact regarding whether she experienced damages from Equifax’s
alleged violation of the FCRA.
As discussed above, Ms. Berry cannot show that Equifax caused her any damages
relating to the loss of her mortgage because the mortgage would have been denied regardless of
any inaccurate reporting or inadequate reinvestigation by Equifax. (Doc. 37-3 at 39); (Id. at 45)
(deposition of Ms. Starnes). However, Ms. Berry also produced sworn testimony from herself
and her daughter indicating that that the inaccuracy on Ms. Berry’s credit report, as well as
Equifax’s failure to adequately investigate and correct the inaccuracy, caused Ms. Berry
emotional and physical distress. (Doc. 44-1; doc. 44-2). That evidence suffices to overcome
Equifax’s motion for summary judgment.
Equifax argues that the court should grant its motion for summary judgment because Ms.
Berry’s assertions that Equifax’s actions caused her emotional and physical distress are
speculative, unsupported by credible evidence, and self-serving. However, courts “routinely and
properly deny summary judgment on the basis of a party’s sworn testimony even though it is
self-serving.” Feliciano, 707 F.3d at 1253 (quoting Price v. Time, Inc., 416 F.3d 1327, 1345
(11th Cir.), as modified on denial of reh'g, 425 F.3d 1292 (11th Cir. 2005)).

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Ms. Berry’s affidavit, which is corroborated by her daughter’s, asserts that she
experienced specific mental and physical symptoms of stress that arose from her inaccurate
credit report and Equifax’s failure to correct the inaccuracy. Further, Ms. Berry’s deposition
testimony does not conclusively foreclose the affidavit testimony at this stage in the proceedings.
Ms. Berry stated in her affidavit that she did not mention the damages from Equifax’s letter
because she was not specifically asked what damages she attributed to Equifax in this case.
(Doc. 44-1). While Ms. Berry did state in her deposition that she could not think of any damages
outside of the mortgage for which she was trying to recover from Equifax, the questions during
the deposition did point Ms. Berry’s focus to the loss of her mortgage. (Doc. 37-4 at 44).
Therefore, the affidavits submitted by Ms. Berry and her daughter do not necessarily conflict
with Ms. Berry’s deposition testimony and the issue merits development by means of crossexamination at trial and resolution by a jury.
Ms. Berry’s affidavits submitted with her response to Equifax’s motion for summary
judgment provide alleged facts that create “a genuine issue for trial.” Celotex, 477 U.S. at
324. The credibility of Ms. Berry’s alleged facts presents a question for the jury, not for the
court on summary judgment. See Anderson, 477 U.S. at 254. Therefore, none of Ms. Berry’s
claims fail as a matter of law because of a failure to show damages, especially not her claims for
willful violation of the FCRA under § 1681n, which do not even require a showing of actual
damages. See Fed. R. Civ. P. 56; 15 U.S.C. § 1681n; Levine, 437 F.3d at 1124–25. Thus, the
court DENIES summary judgment on this issue.
2. Reasonable Procedures
Equifax also argues that Ms. Berry failed to show that it did not follow reasonable
procedures to assure maximum credit reporting accuracy under § 1681e(b), as it reasonably

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relied on reports from First State Bank. Ms. Berry responds that First State Bank reported that
her account was not late in September 2017, so Equifax cannot argue that it was simply relying
on information from First State Bank that it believed to be reliable. Equifax replies that, based
on Equifax’s own records, First State Bank was the one who reported that Ms. Berry’s account
had a 60-day late payment in September 2017. The court finds that it cannot resolve at this
juncture whether Equifax followed reasonable procedures as a matter of law.
To show a prima facie violation of § 1681e(b) “a consumer must present evidence
tending to show that a credit reporting agency prepared a report containing ‘inaccurate’
information.” Cahlin, 936 F.2d at 1156. Nevertheless, the FCRA’s lack of strict liability means
that even if a credit reporting agency generated an inaccurate report, the agency can escape
liability by showing that it followed reasonable procedures, “which will be a jury question in the
overwhelming majority of cases.” Id.; Heupel, 193 F. Supp. 2d at 1239.
In this case, neither party disputes the inaccuracy of the credit report stating that Ms.
Berry was 60 days late on her mortgage as of September 2017 when she had actually remedied
her outstanding late payments in August and paid off the entire mortgage in September. Thus,
the important question becomes whether Equifax followed reasonable procedures. Equifax
argues that its procedures were reasonable because, based on the way it codes its own
documents, its records show that First State Bank reported that Ms. Berry was 60 days late on
her mortgage in September 2017.
The record lacks complete clarity on the precise provenance of the information indicating
that Ms. Berry was 60 days late on her payment in September 2017. In making its argument,
Equifax relies on a report from an expert stating, without further specific explanation, that
“Equifax did not cause the a 60-day late payment, or any other late payment, to appear on the

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Plaintiff’s First State Bank tradeline at Equifax […] First State Bank affirmatively reported all of
the late payments associated with the Plaintiff’s mortgage loan. Further, it appears that First
State Bank changed the dates […] .” (Doc. 40-5 at 19) (emphasis added). In its motion for
summary judgment, Equifax writes that “it appears [First State Bank] changed the dates of the
Ms. Berry’s multiple late payments by one month each, sometime between July 22, 2017 and
February 1, 2018 as part of their normal monthly tape updates.” (Doc. 40 at 29) (emphasis
added). Equifax suggests that the inaccurate information must have been submitted by First
State Bank, but fails to show exactly when or how. Further clouding the issue, a representative
of First State Bank testified that, in September 2017, First State Bank reported that Ms. Berry
was current on her mortgage payments. (Doc. 37-2 at 12).
When viewed in light of the fact that the reasonableness of a credit reporting agency’s
procedures presents a question for the jury in the “overwhelming majority” of cases, the
reasonableness of Equifax’s procedures in this case—in which it is not abundantly clear where
the inaccurate information came from or whether Equifax should have noticed and fixed the
erroneous report—presents a question for the jury. See Cahlin, 936 F.2d at 1156; Heupel, 193 F.
Supp. 2d at 1239. Accordingly, the court DENIES summary judgment on this issue.
3. Failure to Show Willfulness
Finally, Equifax argues that Ms. Berry has not made the necessary showing of
recklessness to support an allegation of willful violation of the FCRA under § 1681n. (Doc. 40).
Equifax argues that Ms. Berry cannot succeed on claims for willfulness when even her claims for
negligence fail and that she cannot show any reckless behavior. Ms. Berry responds that a jury
must decide whether Equifax acted recklessly and willfully under § 1681n. (Doc. 44). Like the

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reasonableness of Equifax’s procedures, the court finds that the question of Equifax’s potential
recklessness should be put to the jury.
Under the FCRA, willfulness requires either a knowing or reckless violation of law. See
Safeco Insurance Co. of America v. Burr, 551 U.S. 47, 57-59 (2007). Recklessness is “action
entailing an unjustifiably high risk of harm that is either known or so obvious that it should be
known.” Id. at 68 (internal quotation marks omitted). A credit reporting agency subject to the
FCRA “does not act in reckless disregard of it unless the action is not only a violation under a
reasonable reading of the statute's terms, but shows that the company ran a risk of violating the
law substantially greater than the risk associated with a reading that was merely careless.” Id. at
69.
Equifax argues that there could be no willful violation in this case because Ms. Berry’s
claims for mere negligence all fail. That particular argument fails to carry the day because of the
court’s decision that Equifax is not entitled to summary judgment on Ms. Berry’s other claims.
Equifax also argues that the only error in this case was a human error by Mr. Tripathi,
which does not amount to willful flouting of the FCRA. Ms. Berry, on the other hand, argues
that a jury must decide whether Equifax willfully violated § 1681i(a) through its policy of not
sending notice of disputes to information furnishers. Equifax asserts that § 1681i(a)(1)(A)
contains an exception that does not require providing notice to information furnishers where a
credit reporting agency is simply changing a consumer’s balance to $0, maintaining a
consumer’s balance at $0, or doing something clerical like changing the digits in a consumer’s
phone number. (Doc. 47 at 12).
As mentioned above, § 1681i(a)(1)(A) requires that a credit reporting agency conduct a
reasonable reinvestigation to determine whether disputed information is inaccurate if a consumer

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disputes “the completeness or accuracy of any item of information contained in a consumer's
file.” 15 U.S.C. § 1681i(a)(1)(A). However, § 1681i(a)(1)(A) also states that, as an alternative
to reinvestigation, the agency can delete a disputed item from a credit file in accordance with
§ 1681i(a)(5).
Section 1681i(a)(5) of the FTCA provides that, in general, after reinvestigation of a
dispute, a credit reporting agency can delete or modify an item found to be inaccurate,
incomplete, or unverifiable. 15 U.S.C. § 1681i(a)(5). However, the credit reporting agency must
promptly notify the furnisher of that information that the information has been modified or
deleted from the file of the consumer. Id..
Additionally, under § 1681i(a)(2) of the FCRA, a credit reporting agency that receives
notice of a dispute from any consumer must generally notify the furnisher of the disputed
information, including “all relevant information regarding the dispute that the agency has
received from the consumer or reseller,” within five business days. 15 U.S.C. § 1681i(a)(2).
The statute provides an exception if the credit reporting agency determines that the dispute is
“frivolous or irrelevant” and specifically notifies the consumer of such finding. Id. §
1681i(a)(3).
The evidence shows, and the parties do not dispute, that Equifax did not find Ms. Berry’s
dispute to be frivolous or irrelevant; so, her dispute could not qualify for that exception to the
FCRA’s notice requirement. (Doc. 39-9 at 15); 15 U.S.C. § 1681i(a)(3). After examining
§ 1681i(a) and Equifax’s arguments, the court cannot find a clear basis for Equifax’s argument
that any exception applies to the requirement under § 1681i(a) to provide notice to information
furnishers like First State Bank where a consumer dispute is not found to be frivolous or
irrelevant. Both § 1861i(a)(2) and § 1861i(a)(5) require that credit reporting agencies give notice

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of disputes to information furnishers. Nevertheless, Equifax did not notify First State Bank of
the dispute. (Doc. 37-2 at 13–15). In fact, Equifax’s corporate representative went so far as to
say that Equifax does not provide notice to information furnishers in cases of “cosmetic
disputes”—for example, Ms. Berry’s dispute as understood by Mr. Tripathi, in which her
account balance was reporting zero—as a matter of policy. (Doc. 39-9 at 16–17). The court fails
to see an apparent notice exception in the text of § 1681i(a) that provides for such a policy.
Because of the lack of a clear exception to the notice-to-information-furnishers
requirement, a reasonable jury could find that Equifax’s policy constitutes a knowing or reckless
violation of the law that amounts to willful violation of the FCRA under § 1681n. See Safeco,
551 U.S. at 57-59. A genuine issue of material fact exists regarding whether the notice
requirements of the FCRA are sufficiently clear that not sending notice to information furnishers
for “cosmetic” disputes shows that Equifax “ran a risk of violating the law substantially greater
than the risk associated with a reading that was merely careless.” Id. at 69. Accordingly,
because a genuine issue of material fact still exists regarding Equifax’s alleged willful violation
of the FCRA, the court DENIES Equifax’s motion for summary judgment. See Fed. R. Civ. P.
56.
IV.

Conclusion
For the reasons stated above, the court DENIES Plaintiff Ms. Berry’s motion for partial

summary judgment. The court also DENIES in its entirety Defendant Equifax’s motion for
summary judgment. The court will enter an order consistent with this Memorandum Opinion.

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DONE and ORDERED this 23rd day of March, 2020.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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