Jacob v. Experian Information Solutions, Inc. et al

Filing 79

OPINION AND ORDER denying 73 Motion for Partial Summary Judgment; denying 74 Motion for summary judgment. See Opinion and Order for new deadlines. The case is placed on the November 2014 trial term calendar. Signed by Judge John E. Steele on 8/21/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIELA JACOB,
Plaintiff,
v.

Case No: 2:13-cv-220-FtM-29DNF

SETERUS, INC.,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of the parties’
cross-motions

for

summary

judgment:

Plaintiff’s

Motion

for

Partial Summary Judgment (Doc. #73) and defendant’s Motion for
Summary Judgment (Doc. #74).

Plaintiff Daniela Jacob (plaintiff

or Jacob) filed a Response to Defendant Seterus, Inc.’s Motion for
Summary Judgment (Doc. #77) and defendant Seterus, Inc. (defendant
or Seterus) filed a Response in Opposition to Plaintiff’s Motion
for Partial Summary Judgment (Doc. #78).
only

remaining

defendant

and

Count

IV

Defendant Seterus is the
of

the

First

Amended

Complaint (Doc. #42), which alleges violations of the Fair Credit
Reporting Act (FCRA), is the only remaining count at issue.
The Court initially took the motions under advisement and
cancelled

trial

because

the

material

facts

appeared

to

be

undisputed, and the parties advised that the only legal issue was
whether plaintiff’s mortgage debt was discharged in bankruptcy.

(Doc. #76.)

Upon further review, the Court finds that the issue

briefed by the parties is not relevant to the ultimate issue.
I.

Standard of Review

Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied 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.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding
summary judgment “may be inappropriate even where the parties agree
on the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).

2

“If a reasonable fact finder

evaluating the evidence could draw more than one inference from
the facts, and if that inference introduces a genuine issue of
material fact, then the court should not grant summary judgment.”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
II.

Relevant Facts

The parties do not address any facts relevant to the FCRA
claim, and therefore the relevant facts are summarized herein from
the First Amended Complaint.

On March 20, 2013, plaintiff her

initial Verified Complaint (Doc. #1) against defendant and three
credit reporting agencies under the Fair Credit Reporting Act
(FCRA).

The three credit reporting agencies were subsequently

dismissed.

In Count IV of the First Amended Complaint (Doc. #42),

plaintiff alleges that Seterus, a furnisher of information to
credit reporting agencies, willfully and/or negligently violated
Section 1681s-2(b) of the FCRA.
Plaintiff alleges that on or about October 13, 2011, plaintiff
requested a copy of her credit report from TransUnion, Experian,
and Equifax.

Each report showed a debt owed to Seterus as late

and with an outstanding balance in excess of $400,000.
classified
classified

plaintiff’s
plaintiff’s

account
account

as

as

“derogatory”;

“potentially

Experian

negative”;

Equifax classified plaintiff’s account as “negative.”
¶¶ 32-34.)

TransUnion

and

(Doc. #42,

On November 19, 2011, plaintiff sent a letter to each

of the three credit reporting agencies disputing the Seterus loan.

3

(Id., ¶ 34.)
credit

Plaintiff received a response from two of the three

reporting

agencies

indicating

that

they

conducted

investigation but no corrections or changes were made.

an

Seterus

admits that it received notice of plaintiff’s dispute from each of
the three credit reporting agencies.

(Doc. #42, ¶ 39; Doc. #71,

¶ 39.)
As of January 2013, the credit reporting agencies were still
reporting the Seterus debt.

Plaintiff alleges that Seterus knew

or should have known that plaintiff’s obligation to repay the
mortgage loan had been discharged in bankruptcy. Plaintiff further
alleges that even after the reinvestigation, Seterus continued to
report

the

credit

information

without

agencies that the debt was disputed.

notifying

the

credit

Plaintiff alleges that

reporting the credit information with actual knowledge of errors
and while consciously avoiding knowing it was inaccurate, despite
notice by plaintiff of the inaccuracy.

Plaintiff alleges that the

reinvestigation was not in good faith and unreasonably conducted.
Plaintiff seeks actual damages under both 15 U.S.C. §§ 1681o and
1681n.
III. The FCRA
Under Title 15, United States Code, Section 1681s-2(a), a
furnisher of information has certain duties to provide accurate
information, and is prohibited from reporting information with
actual knowledge of errors or reporting information after notice

4

and

confirmation

furnisher

of

of

errors.

information

is

15

U.S.C.

required

§

to

1681s-2(a)(1).
correct

and

A

update

furnished information, provide notice of a dispute to reporting
agencies, provide notice of closed and delinquent accounts, and to
notify the consumer in writing if furnishing negative information.
15 U.S.C. § 1681s-2(a)(2)-(5), (7).

No private cause of action is

permitted for any of these duties enumerated under subsection (a).
Peart v. Shippie, 345 F. App'x 384, 386 (11th Cir. 2009) (citing
15 U.S.C. 1681s-2(c)).

Therefore, the allegations that the debt

information was inaccurate is not actionable.
Under Title 15, United States Code, Section 1681s-2(b), upon
notice of a dispute with regard to the completeness or accuracy of
information provided to a consumer reporting agency, the furnisher
shall:
(A) conduct an investigation with respect to
the disputed information;
(B) review all relevant information provided
by the consumer reporting agency pursuant to
section 1681i(a)(2) of this title;
(C) report the results of the investigation to
the consumer reporting agency;
(D) if the investigation finds that the
information is incomplete or inaccurate,
report those results to all other consumer
reporting agencies to which the person
furnished the information and that compile and
maintain files on consumers on a nationwide
basis; and
(E) if an item of information disputed by a
consumer is found to be inaccurate or

5

incomplete or cannot be verified after any
reinvestigation under paragraph (1), for
purposes of reporting to a consumer reporting
agency only, as appropriate, based on the
results of the reinvestigation promptly-(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of
that item of information.
15 U.S.C. § 1681s-2(b)(1).

A private cause of action does lie for

both a willful or negligent failure to investigate, see 15 U.S.C.
§§ 1681n and 1681o, however “only if the furnisher received notice
of the consumer's dispute from a consumer reporting agency.” Peart
v. Shippie, 345 F. App'x 384, 386 (11th Cir. 2009).

In this case,

Seterus admitted that it received notice from the three credit
reporting agencies, and plaintiff alleges that an investigation
and reinvestigation occurred.
Plaintiff alleges that the investigation was inadequate or
not conducted in good faith.

The summary judgment motions fail to

address any undisputed and material facts to this ultimate issue.
Accordingly, it is now
ORDERED:
1. Plaintiff’s Motion for Partial Summary Judgment (Doc. #73)
is DENIED.
2. Defendant’s Motion for Summary Judgment (Doc. #74) is
DENIED.
3.

The following new deadlines shall apply to the case:

6

Meeting in person to prepare
Joint
Final
Pretrial
Statement
Joint
Final
Pretrial
Statement (including a single
set of jury instructions and
Verdict
form,
voir
dire
questions, witness lists, and
exhibit lists)
All other motions, including
motions in limine and trial
briefs
Final Pretrial Conference
Trial Term (Jury; 3 days)

September 12, 2014

September 19, 2014

September 29, 2014

October 20, 2014, at 9:00 am
November 3, 2014

DONE AND ORDERED at Fort Myers, Florida, this
August, 2014.

Copies:
Counsel of record

7

21st

day of