Eller v. Experian Information Solutions, Inc. et al

Filing 173

ORDER AFFIRMED 155 Report and Recommendations of the United States Magistrate Judge. Granting in part and Denying in part 118 Defendant Trans Union LLCs Motion for Summary Judgment; granting 122 Defendant Experian Information Solutions, Inc.s Motion for Summary Judgment in its entirety; denying 124 Plaintiffs Motion for Summary Judgment in its entirety; by Judge William J. Martinez on 8/4/2011. (erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09–cv–00040–WJM–KMT
GERALD HANSEN ELLER,
Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS, INC., a foreign corporation, and
TRANS UNION LLC, a foreign corporation,
Defendants.

ORDER AFFIRMING MAY 17, 2011 RECOMMENDATION
OF U.S. MAGISTRATE JUDGE
THIS MATTER is before the Court on the May 17, 2011 Recommendation of
United States Magistrate Judge (“Recommendation”). (ECF No. 155.) In this
Recommendation, Magistrate Judge Kathleen M. Tafoya recommends the Court (1)
grant in part and deny in part Defendant Trans Union LLC’s (“Trans Union”) Motion for
Summary Judgment, ECF No. 118; (2) grant Defendant Experian Information Solutions,
Inc.’s (“Experian”) Motion for Summary Judgment, ECF No. 122; and (3) deny Plaintiff’s
Motion for Summary Judgment, ECF No. 124. The Recommendation is incorporated
herein by reference. See 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b),
D.C.COLO.LCivR. 72.1.
On June 1, 2011, Trans Union filed an objection to the Recommendation. (ECF
No. 165.) On June 3, 2011, Plaintiff also filed an objection to the Recommendation.
(ECF No. 167.) In light of these objections, the Court has conducted the requisite de

novo review of the issues, the Recommendation, and the objections. For the reasons
stated below, the Court AFFIRMS and ADOPTS the Recommendation.
STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine
de novo any part of the magistrate judge's [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). An objection is properly made if it is both timely
and specific. U.S. v. One Parcel of Real Property Known As 2121 East 30th Street, 73
F.3d 1057, 1059 (10th Cir.1996). An objection is timely if made within 10 days after the
Magistrate Judge issues her recommendation. Id. An objection is sufficiently specific if
it “enables the district judge to focus attention on those issues–factual and legal–that
are at the heart of the parties’ dispute.” See id. (quoting Thomas v. Arn, 474 U.S. 140,
147 (1985)). If objections are not made or if made improperly, the Court has discretion
to review the recommendation under whatever standard it deems appropriate.
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). In conducting its review,
“[t]he district judge may accept, reject, or modify the [recommendation]; receive further
evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3).
In considering the Magistrate Judge’s Recommendation in the instant case, the
Court is mindful of Plaintiff’s pro se status, and accordingly, reads his pleadings and
filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal
construction is intended merely to overlook technical formatting errors and other defects
in Plaintiff’s use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d
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1106, 1110 (10th Cir. 1991). Pro se status does not relieve Plaintiff of the duty to
comply with various rules and procedures governing litigants and counsel or the
requirements of the substantive law and, in these regards, the Court will treat Plaintiff
according to the same standard as counsel licensed to practice law before the bar of
this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994).
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Service, 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. Quaker State Mini-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527
(10th Cir. 1995); Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

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DISCUSSION
I.

Trans Union’s Motion for Summary Judgment
Trans Union moved for summary judgment on Plaintiff’s Fair Credit Reporting Act

(“FCRA”), 15 U.S.C. §§ 1681 et seq., claims and Plaintiff’s Colorado Consumer Credit
Reporting Act (“CCCRA”), Colo. Rev. Stat. §§ 12-14.3-101 et seq., claims. (ECF No.
118.) The Magistrate Judge recommended that Trans Union’s Motion for Summary
Judgment be (1) denied as to Plaintiff’s request for damages as to the Bank of America
credit denial and for mental anguish and emotional distress for negligent noncompliance
with Section 1681e(b); (2) denied as to Plaintiff’s claim for willful violation of Section
1681e(b) of the FCRA and Colo. Rev. Stat. § 12-14.3-103.5; and (3) granted in all other
respects. (See ECF No. 167.)
Trans Union objects to the Magistrate Judge’s Recommendation denying
summary judgment on the negligent noncompliance damages claims and the willful
violation claims. (See ECF No. 165.) Plaintiff, on the other hand, objects to the
Magistrate Judge’s Recommendation granting Trans Union’s Motion for Summary
Judgment in all other respects. (See ECF No. 167.)
A.

Section 1681e(b) Claim

With respect to the Section 1681e(b) negligent noncompliance claim, the Court
finds the Magistrate Judge’s Recommendation well reasoned and analyzed. (See ECF
No. 155 at 10-30.) The Recommendation correctly states that, to prevail on a claim for
negligent noncompliance within Section 1681e(b), a plaintiff must establish (1) the
existence of an inaccurate credit report; (2) that the consumer reporting agency failed to

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follow reasonable procedures to assure the maximum accuracy of its reports; (3) that
the plaintiff suffered an injury; and (4) that the consumer reporting agency’s failure
caused the plaintiff’s injury. (ECF No. 155 at 10-11 (citing Cassara v. DAC Servs., Inc.,
276 F.3d 1210, 1217 (10th Cir. 2002).) The Court incorporates Magistrate Judge
Tafoya’s analysis and discussion of the issue on pages 10-30 herein by reference.
Reasonable Procedures
After first showing that an inaccurate credit report was produced, a Section
1681e(b) negligent noncompliance claim next requires a plaintiff to show that the
consumer reporting agency failed to follow reasonable procedures to assure the
accuracy of its reports. Id. “Reasonable procedures are those that a reasonably
prudent person would undertake in the circumstances.” Cortez v. Trans Union, LLC,
617 F.3d 688, 709 (3d Cir. 2010).
Here, Plaintiff has met the initial burden of showing that Trans Union maintained
an inaccurate credit file following the appearance of the NCO Financial account in
Plaintiff’s credit file. (ECF No. 34 at ¶ 14.) The Recommendation notes that Plaintiff
has been litigating the issue of misinformation pertaining to Jerry Willard appearing on
his Trans Union credit report since before 2001. (ECF No. 155.) Trans Union argues
that this is not enough to support a denial of summary judgment for negligent
noncompliance violations of the FCRA and CCCRA. (ECF No. 165 at 9.) The Court
disagrees. Despite reaching a settlement in 2001 and again in 2006 relating, at least in
part, to the inclusion of records pertaining to Jerry Willard in Plaintiff’s credit report,
Trans Union in 2008 again allowed such misinformation to appear on Plaintiff’s credit
report. (See ECF No. 155 at 2.) Following the 2006 settlement, Jerry Willard no longer
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appeared on Plaintiff’s Trans Union credit report. (Id. at 13.) However, on March 13,
2008 the NCO Financial account listing Jerry Willard was again added to Trans Union’s
file. Despite Trans Union providing Plaintiff “with a special procedure to help further
assure the maximum possible accuracy of his Trans Union credit file,” Trans Union
failed to keep the Jerry Willard information out of Plaintiff’s credit report. (ECF No. 118
at ¶ 18.) In checking reported information, Trans Union verifies an exact match on the
social security number, address, and first name. (ECF No. 119-3 at ¶ 12.) However,
Trans Union does not require an exact match of the last name. (Id.) Yet, in the case of
Plaintiff, where Trans Union is specifically aware that Jerry Willard is not an alias of
Plaintiff, checking to ensure that such data is not in the credit report is a reasonable
procedure that Trans Union should have taken.
Because there is some evidence that Trans Union failed to take reasonable
precautions to ensure that information regarding Jerry Willard did not appear on
Plaintiff’s credit report, Plaintiff’s claim meets the second element of a claim of negligent
noncompliance under Section 1681e(b) of the FCRA.
Injury as a Result of Failure to Adopt Reasonable Procedures
The third and fourth elements require a plaintiff to show that he suffered an injury
because of the actions of the defendant. Cassara, 276 F.3d at 1217. The
Recommendation allows Plaintiff’s claims for damages related to the Bank of America
credit denial and damages for mental and emotional distress to proceed. (ECF No. 155
at 48.)
Although Trans Union asserts there is no information to provide a basis for
damages regarding Bank of America’s credit denial based on a Trans Union report,
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ECF No. 165 at 3, the Magistrate Judge found that a declaration provided by Trans
Union did not create an absence of evidence regarding causation such that the burden
shifts to Plaintiff. (ECF No. 155 at 22.) The Court agrees. Despite Trans Union’s
awareness that Jerry Willard is not an alias of Plaintiff’s, the NCO Financial account
once again appeared on Plaintiff’s credit file. There is no evidence on the record
showing that Bank of America denied Plaintiff’s credit for a reason other than the NCO
Financial account in Plaintiff’s Trans Union credit file. Because a genuine issue of
material dispute exists as to whether Bank of America relied on the NCO Financial
account information, summary judgment is inappropriate on this portion of Plaintiff’s
Section 1681e(b) negligent noncompliance claim.
In addition, Plaintiff has established a disputed fact as to whether his mental and
emotional distress were caused, at least in part, by Trans Union’s failure to keep the
NCO Financial account information pertaining to Jerry Willard out of Plaintiff’s credit
report. (See ECF No. 155 at 24-30.) The Magistrate Judge found, and the Court
agrees, that a reasonable jury could find that Plaintiff suffered emotional distress and
mental anguish after he discovered the NCO Financial account on his Trans Union
credit report, and that this was due to Trans Union’s failure to follow reasonable
procedures to ensure the maximum accuracy in Plaintiff’s credit file. (ECF No. 155 at
27-28.) Therefore, the Court concurs that summary judgment on Plaintiff’s Section
1681e(b) negligent noncompliance claim against Trans Union for mental and emotional
damages is inappropriate.
The Court agrees, however, with the Magistrate Judge that Plaintiff’s other
Section 1681e(b) negligent noncompliance claims for damages against Trans union, as
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outlined in the Recommendation on pages 17-18, are appropriate for summary
judgment. As discussed in the Recommendation on pages 18-24 and incorporated by
reference herein, these additional claims for damages were incurred either prior to the
NCO Financial account appearing on Plaintiff’s Trans Uion consumer file in March 2008,
or they are not related to the NCO Financial account at all. As Plaintiff’s claims
asserted against Trans Union are limited to wrongs incurred related to the NCO
Financial account, any damages incurred not relating to NCO Financial are barred.
(See ECF Nos. 34 at ¶ 14-15; 155 at 12.) The Court realizes Plaintiff alleges he has
suffered further economic damages as a result of Trans Union’s reporting of his credit.
These further damages are not, however, related to the claims asserted in the operative
complaint, Plaintiff’s Second Amended Complaint, and therefore are appropriate for
summary dismissal. (See ECF No. 34.)
In sum, with respect to Plaintiff’s Section 1681e(b) negligent noncompliance
claim, he Recommendation is accepted and Trans Union’s motion for summary
judgment is granted, except as to the Bank of America credit denial and Plaintiff’s claim
for mental and emotional distress.
B.

Section 1681i Claim

With respect to Plaintiff’s Section 1681i claims, the Court finds the Magistrate
Judge’s Recommendation well reasoned and analyzed, and incorporates the analysis
and discussion on pages 30-34 herein by reference. The Court agrees with the
Magistrate Judge that a claim for negligent noncompliance under Section 1681i requires
a showing that (1) the plaintiff disputed the completeness or accuracy of an item in his
consumer file; (2) the plaintiff notified the consumer reporting agency of the dispute; (3)
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the consumer reporting agency failed to conduct a reasonable investigation within the
time period allowed; and (4) the plaintiff suffered actual damages as a result of the
inaccurate information in his file. (ECF No. 155 at 32 (citing Ruffin-Thompkins v.
Experian Info. Solutions, Inc., 422 F.3d 603, 608 (7th Cir. 2005).)
Here, as the Recommendation discusses, Plaintiff filed a document with Trans
Union on February 26, 2008, providing notice to Trans Union that Plaintiff believed there
was misinformation on his credit report. (ECF No. 119-1 at 20-22.) However, as the
Magistrate Judge pointed out, the statute requires notice of a specific item of
information appearing falsely on a credit report. (See ECF No. 155 at 33 (citing 15
U.S.C. § 1681i(a)(1)(A); 15 U.S.C. § 1681i(a)(3)(a)).) At the time of this notice, the
NCO Financial account reporting Jerry Willard had not yet appeared on Plaintiff’s Trans
Union file, as it did not appear until March 13, 2008. (ECF No. 119-3 at ¶ 12.) Plaintiff
argues that he should not have had to provide notice to Trans Union following his
February 26, 2008 filing. (ECF No. 167 at 8.) Although Plaintiff is correct that there
should be no onus on him to provide notice of disputed information more than once, this
February 2008 notice to Trans Union did not provide notice of the NCO Financial
account information.
In order for Plaintiff to withstand summary judgment on his Section 1681i claim,
he needed to have provided Trans Union notice after the NCO Financial account
appeared in his file. Thus, the Court accepts the Recommendation that summary
judgment be granted in favor of Trans Union on the Section 1681i negligent
noncompliance claim.

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C.

Willful Violation of FCRA Claim

The FCRA requires a consumer reporting agency to “follow reasonable
procedures to assure maximum possible accuracy of the information concerning the
individual about whom the report relates.” 15 U.S.C.A. § 1681e(b). Further, when a
consumer reporting agency learns of or should be aware of errors in its reports, it must
investigate for errors. See Owner-Operator Indep. Drivers Ass’n, Inc. v. USIS
Commercial Servs., Inc. 537 F.3d 1184, 1192 (10th Cir. 2008). Under Section 1681n, a
plaintiff need not prove actual damages but may recover punitive and statutory
damages as well as costs and fees if a defendant willfully violates the FCRA. 15
U.S.C.A. § 1681n. “A ‘willful’ violation is either an intentional violation or a violation
committed by an agency in reckless disregard of its duties under the FCRA.”
Birmingham v. Experian Info. Solutions, Inc., 633 F.3d 1006, 1009 (10th Cir. 2011)
(citing Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57-58 (2007)). “Recklessness is
measured by an objective standard: action entailing an unjustifiably high risk of harm
that is either known or so obvious that it should be known.” Id. (citation and internal
quotation marks omitted). “A company subject to 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. (citation
omitted).
Plaintiff correctly argues that the fact that the NCO Financial account reappeared
on Plaintiff’s credit file in itself is evidence of Trans Union recklessly disregarding its
duties of accurate reporting, pursuant to Section 1681e(b). However, because Plaintiff
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did not provide Trans Union notice of disputed information after the NCO Financial
account appeared on his credit report, Plaintiff’s Section 1681i claim fails. The Court
hereby accepts the Magistrate Judge’s Recommendation and denies summary
judgment on Plaintiff’s Section 1681e(b) claim for willful violation of the FCRA. The
Court further grants summary judgment on Plaintiff’s Section 1681i claim for willful
violation of the FCRA.
D.

CCCRA Claims

Neither Plaintiff nor Trans Union disputes the Magistrate Judge’s conclusion that
claims under the CCCRA should be treated similarly to the FCRA claims as the state
statute tracks the language of the federal statute. The Court therefore accepts the
Recommendation that, like the FCRA claims, summary judgment is not appropriate on
Plaintiff’s CCCRA claim for willful violation of Colo. Rev. Stat. § 12-14.3-103.5 (the
equivalent of Section 1681e(b)), but is granted on Plaintiff’s CCCRA claim for willful
violation of Colo. Rev. Stat. § 12-14.3-106 (the equivalent of Section 1681i).
II.

Experian’s Motion for Summary Judgment
Experian requested summary judgment on Plaintiff’s FCRA and CCCRA claims,

arguing Plaintiff cannot show that Experian did not provide a current credit file
disclosure upon request, and Plaintiff likewise cannot show that Experian reported
inaccurate derogatory information that resulted in a credit denial by Citibank. (ECF No.
122 at 1.) The Magistrate Judge recommended that Experian’s Motion for Summary
Judgment be granted in full. (See ECF No. 155 at 49.) Upon de novo review of the
documents on record, including Experian’s Motion for Summary Judgment, ECF No.
122, Plaintiff’s Response, ECF No. 154, and Experian’s Reply, ECF No. 157, the Court
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agrees with the Recommendation and incorporates the discussion and analysis of the
issues on pages 37-47 herein by reference.
Section 1681e(b) Claim
Plaintiff objects to the Recommendation, and renews his argument that Experian,
while not including derogatory information in the credit reports, included too few
satisfactory credit references in its report to Citibank. (ECF No. 167 at 16.) It is
significant that Plaintiff agreed in 2006 that Experian’s credit report was satisfactory,
and that the credit report on which Citibank based its denial was substantially similar to
the 2006 report, aside from two past-due student loan accounts that Plaintiff admitted to
having stopped paying. (ECF No. 122 at 7.) Plaintiff has shown no evidence, at the
summary judgment stage, to support an argument that Experian should have included
additional information to bolster the credit report. Plaintiff argues Citibank would have
approved his credit had Experian provided further information, but offers no evidence
supporting this assertion. (See ECF No. 167 at 18.) Further, Plaintiff has failed to show
that Experian reported any inaccurate information on the credit report received by
Citibank. The Court thus accepts and adopts the Magistrate Judge’s Recommendation
that summary judgment be granted on the Section 1681e(b) claims against Experian.
Section 1681g Claims
Plaintiff argues that he was not provided with an exact copy of the Experian
credit report Citibank relied on in denying Plaintiff credit. (ECF No. 34 at ¶ 13.) The
Magistrate Judge found, and the Court agrees, however, that Experian was required
only to provide Plaintiff with a copy of the information in his credit file at the time of the
request, but not a copy of the credit report as provided to Citibank. See 15 U.S.C. §
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1681g(a)(1). Experian provided Plaintiff with the appropriate information, and thus
summary judgment on this claim is also appropriate.
CCCRA Claims
As discussed above, the language of the CCCRA tracks the language of the
FCRA. As Plaintiff’s FRCA claims fail on summary judgment, Plaintiff’s CCCRA claims
likewise fail. Experian’s motion for summary judgment on Plaintiff’s CCCRA claims is
also granted.
III.

Plaintiff’s Motion for Summary Judgment
Arguments included in Plaintiff’s Motion for Summary Judgement, ECF No. 125,

were addressed in detail in the Magistrate Judge’s Recommendation, ECF No. 155, and
have been given de novo review by the Court. The Court agrees with the
Recommendation that, based on the analysis and findings reached in the context of
Defendant’s Trans Union and Experian’s motions for summary judgment, Plaintiff’s
motion for summary judgment should and the same is denied in its entirety.
IV.

Counterclaims
Neither Trans Union nor Experian have filed an objection to the portion of the

Recommendation that summary judgment is not appropriate on Defendants’
counterclaims. Defendants have therefore waived any review of this portion of the
Recommendation, and summary judgment will not enter on Defendants’ counterclaims.
CONCLUSION
Accordingly, it is hereby ORDERED that the Recommendation of the United
States Magistrate Judge, ECF No. 155, filed May 17, 2011, is AFFIRMED and

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ADOPTED in its entirety. For the reasons cited therein and in this Order,
IT IS HEREBY ORDERED that:
1)

Defendant Trans Union LLC’s Motion for Summary Judgment, ECF No.
118, is GRANTED IN PART and DENIED IN PART as follows:
a)

Summary judgment on Plaintiff’s FCRA Section 1681e(b) negligent
noncompliance claims is DENIED as to:
i)
ii)

b)

Bank of America damages;
Mental and emotional damages;

Summary judgment on Plaintiff’s FCRA Section 1681e(b) negligent
noncompliance claims is GRANTED in all other respects;

c)

Summary judgment on Plaintiff’s FCRA Section 1681i negligent
noncompliance claim is GRANTED;

d)

Summary judgment on Plaintiff’s FCRA Section 1681i willful
noncompliance claim is GRANTED;

e)

Summary judgment on Plaintiff’s FCRA Section 1681e(b) willful
noncompliance claim is DENIED;

f)

Summary judgement on Plaintiff’s Colo. Rev. Stat. § 12-14.3-103.5
willful violation of the CCCRA claim is DENIED; and

g)

Summary judgment on Plaintiff’s Colo. Rev. Stat. § 12-14.3-106
willful violation of the CCCRA claim is GRANTED;

2)

Defendant Experian Information Solutions, Inc.’s Motion for Summary
Judgment, ECF No. 122, is GRANTED in its entirety;

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3)

Plaintiff’s Motion for Summary Judgment, ECF No. 124, is DENIED in its
entirety; and

4)

To the extent Defendants Trans Union or Experian sought summary
judgment on their counterclaims, those motions are DENIED.

It is FURTHER ORDERED that Plaintiff’s Response and Objection to the
Magistrate Judge’s Recommendation, ECF No. 167, and Trans Union’s Objection to the
Magistrate Judge’s Recommendation, ECF No. 165, are OVERRULED.
Dated this 4th day of August, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

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