White vs. Josh McHughes, et al

Filing 87

ORDER granting 74 Motion for Summary Judgment. Plaintiffs' complaint as stated against GMAC Financial Services is dismissed. Signed by Honorable Jimm Larry Hendren on October 12, 2011. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DONALD E. WHITE and
AUSTA M. WHITE
v.

PLAINTIFFS
Civil No. 10-5032

JOSH McHUGHES, ET AL.

DEFENDANTS
ORDER

NOW on this 12th day of October, 2011, the above referenced
matter comes on for this Court’s consideration of Ally Financial’s
Motion for Summary Judgment (document #58), filed by separate
defendant Ally Financial Inc. f/k/a GMAC Inc. D/b/a GMAC Financial
Services

(hereinafter

“Ally”).

The

Court,

being

well

and

sufficiently advised, finds and orders as follows:
1.
2010.

The plaintiffs commenced this action on February 16,
Plaintiffs’ third amended complaint (document #52) was

filed on March 4, 2011 and asserts the following claims:
*

Count 1 asserts a claim under 15 U.S.C. § 1692g against

Josh McHughes, Becky McHughes, and the McHughes Law Firm LLC
(hereinafter the “McHughes defendants”).

Plaintiffs claim the

McHughes defendants violated 15 U.S.C. § 1692g by failing to
respond to plaintiffs’ dispute letter which plaintiffs mailed on
June 3, 2008.
*

Count 2 asserts a claim under 15 U.S.C. § 1692g against

Cavalry Portfolio Services, LLC (hereinafter “Cavalry”).
*

Count 3 asserts a claim under 15 U.S.C. § 1681n against

Ally Financial Services f/k/a GMAC Inc. d/b/a GMAC Financial
Services (hereinafter “Ally”).

Plaintiffs claim Ally violated 15

U.S.C. § 1681n by failing to validate the alleged Ally debt after
plaintiffs requested such validation on February 24, 2006.
*

Count 4 asserts a claim under 15 U.S.C. § 1681o against

Ally. Plaintiffs claim Ally violated 15 U.S.C. § 1681o by failing
to validate the alleged debt after plaintiffs requested such
validation on March 30, 2004.
2.

The instant motion for summary judgment asserts that

Ally is entitled to summary judgment with respect to all claims
against it.

The plaintiffs have responded and the motion is now

ripe for consideration.
3.

The standard to be applied to a motion for summary

judgment is set forth in Rule 56 of the Federal Rules of Civil
Procedure and provides for the entry of summary judgment on a
claim
if
the
pleadings,
depositions,
answers
to
interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.
F.R.Civ.P. 56(c); see also Carroll v. Pfeffer, 262 F.3d 847 (8th
Cir. 2001); Barge v. Anheuser-Busch, Inc., 87 F.3d 256 (8th Cir.
1996).

Summary judgment is to be granted only where the evidence

is such that no reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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250 (1986). Accordingly, all evidence must be viewed in the light
“most favorable to the non-moving party.”

F.D.I.C. v. Bell, 106

F.3d 258, 263 (8th Cir. 1997); see also Bailey v. United States
Postal Service, 208 F.3d 652, 654 (8th Cir. 2000).
Where a movant makes and properly supports a motion for
summary

judgment,

the

opposing

party

may

not

rest

upon the

allegations or denials of its pleadings; rather, the non-movant
must "set forth specific facts showing that there is a genuine
issue for trial." Liberty Lobby, 477 U.S. at 256.

The non-moving

party must "make a sufficient showing on every essential element
of its case for which it has the burden of proof at trial."
Wilson v.

Southwestern Bell Tel.

Co., 55 F.3d 399, 405 (8th Cir.

1995).
4.

For the purpose of considering the motion for summary

judgment and based upon the pleadings submitted by the parties,
the Court believes the following material undisputed facts appear:
*

Ally is not a “Consumer Reporting Agency” under 15

U.S.C. § 1681 et seq.
*

From early 2006 to present, Ally has no record or

receiving a notice of dispute from any consumer credit agency
relating to plaintiffs accounts.
5.

Ally argues that summary judgment should be granted with

respect to plaintiffs’ claims under the FCRA because there is no
proof that Ally received a notice of consumer dispute from a

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consumer reporting agency. Ally also argues that summary judgment
should be granted because there is no proof that Ally reported to
any consumer reporting agency false or misleading information.
Under §§ 1681n and 1681o, the “FCRA provides for a private
right of action if a creditor willingly, knowingly, or recklessly
violated its provisions.”

Poehl v. Countrywide Home Loans, Inc.,

528 F.3d 1093 (8th Cir. 2008).

It is undisputed that Ally does not

qualify as a credit reporting agency – but instead, for purposes
of the FCRA, is a “furnisher of credit information.”
“15

U.S.C.

information

to

§

1681s-2(b)

verify

furnished information.”
(W.D. Ark. 2008).

the

requires

sufficiency

furnishers
and

of

accuracy

credit
of

the

McKinzie v. Regions Bank, 2008 WL 899254

However, a furnisher’s obligation under this

section is only triggered after a consumer reporting agency
notifies the furnisher of a dispute regarding the information.
Anderson v. EMC Mortg. Corp., 2011 WL 409095 (8th Cir. February 9,
2011).
Here, although the plaintiffs argue that they contacted Ally
concerning the accuracy of their credit information, there is
simply no evidence that a consumer reporting agency notified Ally
of a dispute, triggering its obligations under 15 U.S.C. § 1681s2(b).
6.

Viewing the evidence in the light most favorable to the

plaintiffs, the undisputed facts show that no reasonable jury

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could return a verdict for the plaintiffs. Therefore, the instant
motion should be granted and the plaintiffs complaint as asserted
against the Ally should be dismissed.1
IT IS THEREFORE ORDERED that Ally Financial’s Motion for
Summary Judgment (document #74) is granted.
IT IS FURTHER ORDERED that plaintiffs’ complaint as stated
against Ally Financial Inc. f/k/a GMAC Inc. d/b/a GMAC Financial
Services is dismissed.

IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

1
The plaintiffs appear to include newly raised claims in both their responses to
the motions for summary judgment and their motions for summary judgment. Newly asserted
claims are not proper for consideration in a motion for summary judgment or a response
thereto. See Rodgers v. City of Des Moines, 435 F.3d 904, 910 (8th Cir. 2006). See also
Northern States Power Co. v. Federal Transit Admin., 358 F.3d 1050, 1057 (“[W]hile we
recognize that the pleading requirements under the Federal Rules are relatively
permissive, they do not entitled parties to manufacture claims, which were not pled,
late into the litigation for the purpose of avoiding summary judgment.”).

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