Boyd v. Experian Information Solutions, Inc. et al

Filing 79

ORDER granting Wells Fargo's 67 Motion for Summary Judgment. The Clerk is DIRECTED to enter the appropriate judgment and to close this case. Signed by Chief Judge Lisa G. Wood on 12/14/2016. (ca)

M

?l9ntteli States! I9ts(tnct Court

tor tl^e ^otttliem IBtOtrtct ot 4leorsta
Pmnoiotck BtbtOton
MICHAEL BOYD,

Plaintiff,
No. 2:15-CV-2

V.

WELLS FARGO BANK, N.A.,
Defendant.

ORDER

Before

the

Court

in

this

Fair

Credit

Reporting

Act

(^'FCRA") case is Defendant Wells Fargo Bank, N.A.'s (^'Wells

Fargo")^ Motion for Summary Judgment, dkt. no. 67.
is fully briefed and ripe for disposition.
73, 75-76.

The motion

Dkt. Nos. 69, 71,

For the reasons below, the motion will be GRANTED.

Additionally, the Court will EXCLUDE in part testimony from
Plaintiff Michael Boyd C'Boyd").
Factual BackgroTind

The Court considers all undisputed, admissible, properly

authenticated

record

evidence.

It

thus

overrules

Boyd's

objection that excerpts from his deposition should not be used

^ The Court dismissed Defendant Experian Information Solutions, Inc., on
October 24, 2016.

D72A

ev. 8/82)

Dkt. No. 78.

because only part of the transcript is in the record.

Dkt.

No. 73-1 at 1-2 (''Wells Fargo only filed certain parts of the

Plaintiff's deposition . . . but . . . the entire deposition
should be filed if it is going to be considered . . . .").

Local Rule 32.1 allows transcript portions to be considered at
this stage.
Someone Obtains a Credit Card in Boyd's Name in 2007

Boyd is a nuclear siobmarine missile technician.
69 at 18:12-20:02.

Dkt. No.

On September 8, 2006, he executed a power

of attorney authorizing his then-wife, Siana Boyd, "to borrow
money and to execute in [his] name any instrument evidencing
indebtedness incurred on [his] behalf."

Dkt. No. 67-3 H 4(c);

see also Dkt. No. 67-1 H 2; Dkt. No. 69-1 H 2.
remained effective until September 5, 2007.

7.

Siana filed for divorce in November 2007.

The power

Dkt. No. 67-3 at

Dkt. No. 67-1 H

3; Dkt. No. 69-1 H 3.
In October 2007, after Siana's power of attorney expired
but before she filed for divorce, someone opened a new credit

card in Boyd's name.

Dkt. No. 67-4 at 69:10-15.

Boyd did not

know about the card until returning home from sea in January
2008.

Id.

days late.

at 21:25-22:03.

Id. at 22:05-06.

He

learned

that the

bill

was 60

Wells Fargo Investigates and Holds Boyd Responsible

Boyd contacted Wells

Fargo.

Fargo replied on March 4, 2008.

Id.

at 23:01-02.

Id. at 16.

Wells

It told Boyd that

it had investigated and found him responsible for the account
balance.

Id.

The next month, Boyd filed with Wells Fargo an

''affidavit of unauthorized

67-4 at 15.

use."

Dkt. No. 67 at 3; Dkt. No.

Due to Boyd's error, the affidavit gave the wrong

number for the disputed account.

Dkt. No. 67-4 at 27:11-19.

Boyd sued Wells Fargo in Georgia state court on September 4,

2009,

alleging

that

Wells

Fargo

had

misinformed

reporting agencies of debt supposedly owed by Boyd.

67-5.

credit

Dkt. No.

The outcome of this proceeding is not apparent.^
Wells Fargo "did not receive any disputes regarding the

Account between October 2009 and August 2014."

Dkt. No. 67-2

^ Boyd claims that Wells Fargo never appeared, relying on a court clerk's
affidavit.

Dkt. No. 69-1 at 3,

However, he fails to give a record cite

to the affidavit, as required by Local Rule 56.1.
failure

to

direct

the

Court

to

the

As a result of Boyd's

affidavit's

expended considerable time and effort searching.

location,

the

Court

It reviewed the entire

docket and searched clerk office files. Its effort proved unsuccessful.
The Court will not undertake any lengthier of a search, as this is
the evil that Local Rule 56.1 is intended to prevent:
[T]he rule's clear procedural directive is intended to reduce
confusion
and
prevent
the
Court
from
having
to scour the record and perform time-intensive fact searching.
The rule thus reflects a clear policy that it is not the

court's

obligation

to scour the record for a factual dispute

that
precludes
summary
judgment.
Rather,
it
is
the
nonmovant's obligation to specifically bring the factual
dispute to the court's attention by rebutting the movant's
factual statements on a paragraph by paragraph basis and with
specific citations to the record.

Joseph V. Napolitano, 839 F. Supp. 2d 1324, 1329 (S.D. Fla. 2012)
(emphasis added) (interpreting parallel local rule); see also Raiford v.
Nat'l Hills Exch., LLC, No. CV 111-152, 2013 WL 1286204, at *17 (S.D. Ga.
Mar. 27, 2013).

H 20.

During this time period, Boyd alleges that his security

clearance was called into question because of his credit, he
was

denied favorable

credit

borrow home-closing costs.

terms

and

loans,

and

he

had

to

Dkt. No. 67-4 at 35:18-36:24; Dkt.

No. 67-7 at 7; Dkt. No. 67-8 at 2-3.

In 2014, Boyd Again Contests the Debt

On September 16, 2014, Wells Fargo received an Automated
Consumer

Dispute

Verification

Information Solutions, Inc.

agency.

(^'ACDV")

(^'Equifax") /

Dkt. No. 67-2 H 8 and p. 8.^

from

Equifax

a credit reporting

The ACDV informed Wells

Fargo that Boyd disputed the account debt on the ground:
liable for account (i.e. ex-spouse, business)

at 8.

''Not

Dkt. No. 67-2

Attached to the ACDV was the image of a letter from

Boyd dated September 5, 2014.

Dkt. No. 67-6 at 18.

It read:

"I have no liability on this account.

I did not open this

account.

Id.

I have not used this account."

Wells Fargo reviewed the ACDV dispute code, the letter,
and its own records.

Dkt. No. 67-2 H 13.

Equifax had correctly identified Boyd.
"modified

It confirmed that

Id. % 14.

Wells Fargo

the date of birth, street address, and compliance

^ Boyd argues that the ACDV is not authenticated.

Dkt. No. 69-1 t 19.

Wells Fargo's Vice President for Consumer Credit Solutions testified that
he

is

familiar

with

the

types

of

business

records

Wells

Fargo

keeps,

reviewed said business records, and the ACDV filed with the Court is
authentic. Dkt. No. 67-2
3, 4-5, 8.
This authenticates the ACDV. See
In re Ulberg, Bankr. No. 10-53637, 2013 WL 5913900, at *6 (Bankr. E.D.
Cal. Oct. 22, 2013), adopted. No. 2:13-CV-02219, 2014 WL 545905 (E.D. Cal.
Feb. 10, 2014); FDIC v. Moore Pharms., Inc., No. 2;12-CV-0067, 2013 WL
1195636, at *2 (D. Nev. Mar. 22, 2013).

code that it had been reporting to Equifax, but . . . did not

remove the Account from Mr. Boyd's credit file."
The

account

December

was

2014,

delinquency.

ultimately

as

seven

removed

years

had

from
passed

Id. f 18.

Boyd's
since

file
the

first

Dkt. No. 67-6 H 14.

Boyd sued Wells Fargo on January 5, 2015.

Dkt. No. 1.

He alleged false credit reporting in violation of FCRA.

H 11.

in

Id.

He sought more than $650,000 in total damages and

attorneys' fees.

Id. at 4.

Along with the alleged injuries summarized above, Boyd
claimed that he had to apply for a January 2015 loan from a

company that '^caters to customers who do not have good credit
ratings, and charges much higher interest rates."
69-1 H

28.

Dkt. No.

According to that company, Boyd's '^credit

was

perfect" and he could not have gotten better terms from it
than he did.

Dkt. No. 67-9 at 26:02-09.
LEGAL STANDARD

Summary judgment is required where ''the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Civ. P. 56(a).

Fed. R.

A fact is "material" if it "might affect the

outcome of the suit under the governing law."

FindWhat Inv'r

Grp. V. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986))
.

A dispute is ^^genuine" if the ^^evidence is such that

a reasonable jury could return a verdict for the nonmoving
party."

Id.

In making this determination, the court is to view all of
the evidence in the light most favorable

party

and

favor.

draw

all

reasonable

inferences

to the

in

nonmoving

that

party's

Johnson v. Booker T. Washington Broad. Serv., Inc.,

234 F.3d 501, 507 (11th Cir. 2000).

properly

authenticated

considered . . . ."

and

'''Documents which are not

verified

. . .

should

not

be

Lugue v. Hercules, Inc., 12 F. Supp. 2d

1351, 1355-56 (S.D. Ga. 1997) (citing First Nat'l Life Ins.
Co. V. Cal. Pac. Life Ins. Co., 876 F.2d 877, 881 (11th Cir.

1989); Davis v. Howard, 561 F.2d 565, 569 (5th Cir. 1977) (per
curiam))."

The

movant

must

demonstrate

the

absence

of

a

genuine

issue of material fact by showing the court that there is an
absence

of

evidence

to

support

the

nonmoving

party's

case.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
If it does so, the burden shifts to the nonmovant to go

beyond the pleadings and present affirmative evidence to show
that a genuine issue of fact does exist.
at 257.
show

It can do so in two ways:

that the

record

Anderson, 477 U.S.

First, the nonmovant "may

in fact contains

supporting

evidence,

sufficient to withstand a directed verdict motion, which was

^overlooked

or ignored'

by the

moving party,

who has

thus

failed to meet the initial burden of showing an absence of
evidence."

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116

(11th Cir. 1993) (quoting Celotex, 477 U.S. at 332 (Brennan,
J., dissenting)).
with

additional

verdict

motion

deficiency."

Second, the

evidence

at

nonmovant

sufficient

trial

based

on

^'may

come forward

to

withstand

the

alleged

a

directed

evidentiary

Id. at 1117.

Where the nonmovant instead attempts to carry this burden
with

nothing more

^^than a

repetition

of [her]

conclusional

allegations, summary judgment for the defendants [is] not only
proper but required."

Morris v. Ross, 663 F.2d 1032, 1033-34

(11th Cir. 1981).
DISCUSSION

I.

BOYD'S AFFIDAVIT IS PARTIALLY EXCLUDED.

Before turning to the Motion for Summary Judgment, the

Court addresses Wells Fargo's contention (dkt. no. 72) that
the

Court should

not

consider

two

full

paragraphs

and

one

partial paragraph of Boyd's affidavit in opposition to summary
judgment (dkt. no. 69-2)

For the reasons that follow, the

contested testimony is EXCLUDED in part.

An affidavit cannot be stricken, because it is not a pleading.

Hawk v.

Atlanta Peach Movers, Inc., No. 1:lO-CV-0239, 2011 WL 1533024, at *1 (N.D.

Ga. Apr. 21, 2011), aff^ d, 469 F. App'x 783 (11th Cir. 2012) (per curiam)
(unpublished opinion). The Court therefore denies Wells Fargo's motion to
strike, but still "consider[s] [it] insofar as it is a notice of

A. The Court Accords Paragraph 3 Minimal Weight.

Paragraph 3 will be included, but accorded only minimal
weight because the letter to which it refers is absent and a
postal receipt is no substitute.

Paragraph 3 states in part

that Boyd ""sent a letter to Wells Fargo Bank by certified mail

demanding

that

[the

debt

at

issue]

be

credit file and again stated that [he]

account or use it in any way."
affidavit attaches a
Fargo."

June

2008

removed

from

[his]

did not open [the]

Dkt. No. 69-2 H 3.
receipt for mail to

The
^^Wells

Id. at 4.

Boyd argues for this testimony to be considered because
^^[c]ounsel

[Boyd's]

for

Wells

deposition,

Dkt. No. 73 at 2.

Fargo

and

made

asked

the

letter

[Boyd]

testimony

about

the

Exhibit

to

Exhibit."

Wells Fargo replies that Boyd ^'does not

identify [the] letter within the record."
The

an

will

be

considered,

Dkt. No. 75 at 5.
but

accorded

only

minimal weight, because the letter cannot be found, and Boyd's

statement is of little significance by itself.^

The Court

cannot locate the letter, despite having reviewed the entire
docket and its clerk office files, and Boyd has not revealed
its

location.

For

its

part,

the

postal

receipt

is

not

objection,
Id. at *2; see also Zottola v. Anesthesia Consultants of
Savannah, P.C., 169 F. Supp. 3d 1348, 1357 (S.D. Ga. 2013) ("[C]ourts tend
to treat motions to strike as objections . . . .")•

^ Given that the Court is not giving the testimony material weight, it
declines to address Wells Fargo's best evidence rule contention regarding
the testimony. See Dkt. No. 72 at 5-6.
8

'^evidence sufficient to support a finding that the [item of
mail

it

is

for]

is

what

[Boyd]

reiterating his debt dispute.

claims

it

is"—a

Fed. R. Evid. 901(a).

letter

In fact,

given the receipt's lack of information regarding the mailed
item's weight, dimensions, value, or character, the package
that it was for could have just as easily contained anything.
Even if the receipt did somehow prove that Boyd sent Wells

Fargo a letter, it could not prove the letter's contents, any
more than the cover is a basis for judging the book.

See

George Eliot, The Mill on the Floss ch. 3 (1860), available at

http://www.gutenberg.org/files/6688/6688-h/6688-h.htm.
This leaves only Boyd's statement that he sent a letter

to Wells Fargo again disputing the debt at issue here.

This

is of little significance, because there is no evidence that
Wells

Fargo

received

the

letter

or

Boyd

gave

Wells

Fargo

reason to doubt the validity of its concluded investigation.
The Court will not exclude this part of Paragraph 3, but this

does exceedingly little to aid Boyd's case.
B. The Court Includes Paragraph 4.

Paragraph 4 will be included, but it, too, is of little
weight.

Paragraph 4 testifies that Siana's divorce attorney,

Garnett Harrison, ^^sent Wells Fargo her check in the amount of

$1,500.00 to pay the account, since she had learned of the

fact that the account was not authorized . . . and Siana . . .

did not have a valid power of attorney."

Dkt. No. 69-2 t 4.

Some of this testimony is hearsay, and some of it may
fall outside of Boyd's personal knowledge.
and

other

inadmissible

evidence

"can

be

However, hearsay
considered

at

the

summary judgment stage as long as [it] is otherwise admissible
and will be presented in an admissible form at trial."
Utterback

v.

Sch.

Bd.

of

Palm

Beach

Cty.,

No.

Nash-

ll-CV-80513,

2012 WL 12865852, at *18 (S.D. Fla. June 8, 2012); cf. Fed. R.

Civ. P. 56(c)(2).
[Boyd]

calls

Harrison's opinions "may not be hearsay if

[her]

consider them.

as

Id.

[a]

witness[

]," so

the

Court

Similarly, Harrison could authenticate

the correspondence and check Boyd attaches as exhibits.
No. 69-2 at 6-8.

will

Dkt.

And Boyd could establish that his testimony

is within his personal knowledge.

The Court thus includes all

of the evidence in its analysis.
However, all that this evidence

shows is that Harrison

believed Boyd, sent "Merchant Services"® a letter (addressed
"Dear

[no

name

follows]")

stating

that

Siana's

power

of

attorney had expired, and then cut a check to Wells Fargo.

See id.; id. H 4.
the

check,

was

It does not show that Wells Fargo received

notified

that

Siana's

power

of

attorney

had

expired, or otherwise received reason to doubt the accuracy of
Boyd testified that he does not know who Merchant Services is.
73-1 at 31:6-7.

10

Dkt. No.

its 2008 investigation.

Thus, this evidence, too, is only of

the slightest weight.
C. The Court Partially Excludes Paragraph 5.

Paragraph 5 will only be excluded to the extent that it

refers to Boyd's credit score, as this is hearsay.

Paragraph

5 discusses the over-25% interest rate on a 2015 loan Boydi^
{

received, attributing it to his ''very low" credit score.
No. 69-2 ^ 5.

Dkt. \

Boyd then testifies that since Wells Fargo

1

removed the disputed debt from his file, "[his] credit score

has jumped from approximately 580 to approximately 710" and he
"can now borrow money . . . at approximately 12% a year."

Wells
Rule

of

Fargo

Civil

seeks

exclusion for four

Procedure

37(c),

Boyd's

reasons:

supposed

Id.

Federal

defiance

this Court's order, lack of authentication, and hearsay.

of

Dkt.

No. 72 at 2-4; Dkt. No. 75 at 4.

Only the last holds weight,

and

the

it

only

requires

excluding

parts

of

Paragraph

5

referring to Boyd's credit score.

i. Rule 37(c) does not allow exclusion here.
Wells Fargo first seeks exclusion by relying on Federal
Rule of Civil Procedure 37(c).

Dkt. No. 72 at 3.

The Rule

provides, "If a party fails to provide information . . . as
required by Rule 26(a) or (e), the party is not allowed to use

that information . . . to supply evidence on a motion . . . ."
Fed. R. Civ. P. 37(c)(1) (emphasis added); contrast Dkt. No.
11

\

\

72 at 3 (characterizing the Rule in Wells Fargo's brief as:
'Ml]f a party fails to provide information during discovery,

the party is not allowed to use that information . . . .")•
But

Boyd

did

not

violate

Rule

26(a)

or

(e).

These

provisions only require a party to disclose documents that it
^^may

use

to

support

its

claims."

26(a)(1)(A)(ii) (emphasis added).

Fed.

R.

Civ.

P.

Boyd never indicated that

he may use documentation of his • credit histoiry to support his
claims.

See Dkt. No. 67-7 at 21-23 (requesting identification

of all documents that could be relevant to Boyd's case), 6-8

(responding

without

identifying

any

unproduced

documents);

Dkt. No. 67-8 at 2-3 (supplementing responses without doing
so).

He apparently intends to rely on his testimony.

Without

any violation of Rule 26(a) or (e), there cannot be a Rule
37(c) sanction.

This is not a reason to exclude Paragraph 5.

ii. Boyd did not defy this Court's Order.
Wells Fargo next drops a bombshell:

"Mr. Boyd .

refus[ed] to comply with this Court's Order."

4.

This is an extremely serious claim.

Dkt. No. 75 at

It is also baseless.

True, obtaining discovery from Boyd proved difficult.
the

As

Court

to

has

already

observed,

Boyd "repeatedly

failed

respond to . . . Wells Fargo's discovery requests and failed
to correct those failures despite numerous opportunities to do

so."

Dkt.

No.

66 at

1.

The

12

stonewall

hid

Boyd's

credit

history from the time period relevant to this case—even though
he testified that he regularly checked his credit score using
a phone application. •

Dkt. No. 48 at 6.

legitimate reason for this lockdown.

Boyd lacked any

Dkt. No. 66 at 2.

(In

fairness to Boyd personally, his shortcomings ''appear[] to be,

in part, the fault of his counsel."

Id. at 4.)

But Wells Fargo already unclogged this logjam by moving
the

Court

documents.

to

compel

discovery.

Dkt. No. 34.

First,

it

sought

credit

Then, it requested that the Court

order Boyd to sign an authorization so that credit reporting

agencies would release them.
audio

recordings

of

oral

Dkt. No., 37.

argument

on

According to the

these

motions.

Judge

Baker attempted to determine the best way to satisfy Wells
Fargo's needs given that Boyd was out to sea.

Judge Baker and

Wells

Boyd

Fargo's

authorization

counsel

that

credit agencies.

would

discussed
cover

having

multiple

years

sign

and

an

multiple

This is where they left the matter.

And

this is the solution ultimately found in Judge Baker's order.

Contrast Dkt. No.
authorization

form

48 at 6 ("[Boyd] is ORDERED to sign the
allowing

Equifax

to

release

his

credit

history report . . . .") with Dkt. No. 75 at 3 ("Mr. Boyd has
never produced any documents evidencing his credit score or
history, even in the face of an Order instructing him to do
so." (emphasis added))
.

13

Boyd signed an authorization.

Dkt. No. 72 at 2 n.2.

Equifax sent Wells Fargo a credit report.

Id.

The Court

cannot exclude Boyd's testimony on the ground that he defied
its order, because he did not.

Wells Fargo complains that the April 27, 2016 report does

it no good because, by then, the disputed account had been
removed

from

Boyd's

file,

and

so

his

score

unrepresentative of the timeframe at issue in this case.

was

Id.

But in the four months between receiving the report and filing
this motion to strike.

Wells

Fargo never sought an amended

order or other assistance in securing production.
never

even

notified

discovery needs unmet.

Boyd

that

it

still

It may have

considered

its

Wells Fargo thus quietly made the bed

in which it must now sleep.
Boyd

satisfied

this

Court's

Order,

eleventh-hour accusation notwithstanding.

Wells

Fargo's

The Court will not

exclude Boyd's testimony on this ground.
iii. The testimony is sufficiently authenticated.
Wells Fargo's third objection to Paragraph 5 is that Boyd

^'fail[ed] to provide adequate factual foundation regarding his
own testimony" because

he ""never identifies how

he obtained

the data regarding his credit history, from whom, or when the
data was generated."

Dkt. No. 72 at 4 n.3.

The Court does

not know which legal mle Wells Fargo is silently invoking
14

here.

See Argo v. Gregory^

No. CV 212-213, 2014 WL 4467268,

at *11 (S.D. Ga. Sept. 10, 2014)

{''[T]he onus is upon the

parties to fonnulate arguments.").

To the extent that Wells

Fargo

exceeds

means

that

the

testimony

Boyd's

personal

knowledge, see Fed. R. Evid. 602, this argument fails.
knows his credit history.

Boyd

See Dkt. No. 37-3 at 3 (testifying

that Boyd checks his credit score monthly); In re Collins, No.
02-50737, 2002 WL 31051032,. at *3 (Bankr. M.D.N.C. June 21,

2002)

(noting debtor's

testimony about her loan amount and

what secured the loan); cf. CHR Equip. Fin., Inc. v. C & K

Transp.,

Inc.,

(allowing

448

N.W.2d

experienced

693,

695

(Iowa

businessman/borrower

prevailing commercial interest rate).

Ct.

App.

1989)

to

testify

to

This is not a groimd

for excluding part of Paragraph 5.
iv. Hearsay

The rule against hearsay is a basis for limiting Boyd's
testimony—but

only

interest rates.

regarding

his

credit

score,

not

his

Boyd's testimony relies on ''a report from a

credit bureau which

was never offered in evidence."

Haygood

V. Auto-Owners Ins. Co., 995 F.2d 1512, 1516 (11th Cir. 1993).

He

offers

appearing

numbers

in

credit rating.

these

spoken

by

credit

proceedings.

rating

These

agencies

numbers

state

not

his

Boyd offers them to prove his credit rating.

15

This is hearsay.

Hearsay is inadmissible.

Fed. R. Evid. 802.

Boyd's Paragraph 5 credit score testimony is excluded.
II.

^LLS FARGO'S MOTION FOR SUMMARY JUDC^NT IS GRANTED.

The

Court

turns

to

Wells

Fargo's

Motion

for

Summary

Judgment.

It will be granted because there is no genuine

issue

material

of

investigation

of

fact

Boyd's

as

to

dispute

whether

was

Wells

reasonable,

or

Fargo's

whether

Boyd incurred damages.^
A. Wells Fargo's Investigation Was Reasonable.

There is no genuine issue of

material fact as to the

reasonableness of Wells Fargo's investigation of the contested

debt.

FCRA requires those who furnish information to credit

reporting agencies, such as Wells Fargo, to investigate if an
agency

reports

a

consumer

2(a)(8)(E), 1681S-2(b)(1).

dispute.

15

not

necessarily

substantive
that

unreasonable

conclusion

conclusion

turns

unfavorable
out

§§

1681s-

''MT]he requirement that furnishers

investigate consumer disputes is procedural.
is

U.S.C.

to

be

because
to

the

An investigation
it

results

consumer,

inaccurate."

in

a

even

if

Gorman

v.

Wolpoff & Abramson, LLP, 584 F.3d 1147, 1161 (9th Cir. 2009).

^ In addition to his FCRA claim, Boyd alleged a violation of "Georgia law
by falsely reporting erroneous information," Dkt. No. 1 i 11, which later
briefing implied to have been a defamation claim.
See Dkt. No. 9 at 6.
This claim, and any other Boyd makes under Georgia law, is not adequately
pled and so is DISMISSED. See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (observing complaint must "give the defendant fair notice
of what the . . . claim is" (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957), abrogated in other part, Twombly, 550 U.S. at 561-63)).
16

The

investigation

Hinkle

v.

must

Midland

Credit

only

be

Mgmt.,

procedurally

Inc.,

827

F.3d

reasonable.
1295,

1302

(11th Cir. 2016).

Reasonability ^^will vary depending on the circumstances
of the case."

Id.

How deep a furnisher must dig depends

partly on whether it is ^^an original creditor"—as is Wells
Fargo here.

Id.

An original creditor can lean more heavily

on its internal records than can a furnisher further down the
line.

Id. at 1305.

A

furnisher

can

documentary evidence
information

is

satisfy

its

FCRA

duty

by ''uncovering

that is sufficient to prove that the

true," or

by "relying

on

personal

knowledge

sufficient to establish the truth of the information."

1303.

The furnisher must look beyond the ACDV and consider

all of the dispute-related information that it has.
8

1306.

Id. at

That

said,

the

ACDV

limits

the

Id. at

furnisher's

duty.

because "whether an investigation is reasonable will depend on
what the furnisher knows about the dispute."

Id.

The ACDV here indicated that Boyd contested the debt on

the ground that he was "[n]ot liable for the account (i.e. ex-

spouse, business)."

Dkt. No. 67-2 at 8.

Wells Fargo also

® Here, however, there is no evidence that Wells Fargo ever received a
letter from Harrison to "Merchant

Services" casting doubt

upon

Siana's

power of attorney. See Dkt. No. 69-2 at 6; discussion supra. The letter
is not addressed to anyone, and "Merchant Services" has not been
identified in this litigation—likely because Boyd said that he "[doesn't]
know who [it] is."

See Dkt. No. 69-2 at 6; Dkt. No. 73-1 at 31:6-7.
17

knew, based on the attached letter, that Boyd claimed:

have

no liability on this account.

account.

I did not open this

I have not used this account."

Wells Fargo looked into its records.

Dkt. No. 67-6 at 18.

It confirmed Boyd's

identity and updated his contact information.

13-14, 18.®
conducted
liable.

a

''I

Dkt. No. 67-2

Crucially, it also found that it had already

FCRA

investigation

on

the

debt

and

held

Boyd

Dkt. No. 67-2 at 9 {''Completed investigation of FCRA

dispute - Consumer disagrees.").
This

was

enough.

FCRA

does

not force

furnishers

endlessly ride the reinvestigation merry-go-round.

to

To stop

Wells Fargo from relying on the 2008 investigation, Boyd had
to give it either "reason to doubt the veracity of the initial
investigation" or "new information that would

have prompted

[it] to supplement the initial investigation."

Gorman, 584

F.3d at 1160; see also Drew v. Equifax Info. Servs., 690 F.3d

1100, 1108 (9th Cir. 2012).

Fargo's]

decision

not

to

Without his doing so, "[Wells

repeat

® By itself, this would not have sufficed.

a

previously-conducted

A sister district court did

hold that an investigation was reasonable where the furnisher only
"verif[ied] that the reported information [was] consistent with the
information in its records."

Howard v. Pinnacle Credit Servs., LLC, No.

4:09-CV-85, 2010 WL 2600753, at *3 (M.D. Ga. June 24, 2010).

But the ACDV

there merely read: "Consumer states inaccurate information.
Provide or
confirm complete ID and account information." Id. at *4; see also Westra
V. Credit Control of Pinellas, 409 F.3d 825, 827 (7th Cir. 2005) (holding

similar investigation reasonable where ACDV only indicated that consumer
"was disputing the charge on the basis that the account did not belong to
him.").
Contrastingly, the ACDV here noted that Boyd pointed to an exspouse or business. That triggered a greater duty on Wells Fargo's part.
18

investigation cannot have been unreasonable."

Id. (emphasis

added) (affirming summary judgment).

Boyd did not cast a shadow upon the 2008 investigation.
Neither

the

ACDV

nor

his

attached

letter

called

it

question or gave Wells Fargo any new information.
neither even mentioned the earlier inquiry.

therefore

entitled

to

summary

into

In fact,

Wells Fargo is

judgment,

because

its

investigation was reasonable as a matter of law.

Boyd complains that Wells Fargo ''has never stated what
investigation it allegedly did in March of 2008."

69-1

H

5.

But

investigation,

Boyd

because

cannot

it

directly

pre-dated

Equifax's notice of Boyd's dispute.
288

F.

App'x

641,

642

(iinpublished

opinion)

defendant]

violated §

(11th

("[The

not

provide

a

private

of

Fargo

that

receiving

Green v. RBS Nat^l Bank,
Cir.

2008)

(per

contends

1681s-2(a) by

right

challenge

Wells

plaintiff]

information regarding his account.

Dkt. No.

curiam)

that

tendering

[the
false

The FCRA, however, does
action

to

redress

such

a

violation . . . . The FCRA does provide a private right of
action

for

a

violation

furnisher received

notice

of §
of

1681s-2(b),
the

but

only

consumer's dispute

if

the

from

a

consumer reporting agency.").
It would not have mattered even if the 2008 investigation
had indeed turned out to have been inadequate, as far as the

19

reasonability of

the

2014

investigation is concerned.

As

explained above, it was Boyd's duty to notify Wells Fargo of
the 2008 investigation's inadequacy at the time of his 2014
debt dispute, and he did not do so.
Still,

because Boyd rests his case upon

Wells

silence, let the simple reason for it be noted:

made

Wells

arsenal.
forth

Fargo speak.

Boyd

had

access

He could have issued subpoenas.

waves

of

interrogatories.

document production.

He

to

Fargo's

Boyd never

a discovery

He could have sent

could

have

requested

If Wells Fargo failed to satisfy him, he

could have moved the Court to compel discovery.

''Ask, and it

will be given to you" is rarely as true in American civic life
as it is in modern federal litigation.

See Matt. 7:7.

It is

inexcusable to quietly let discovery pass and then shout that
the

other

party

has

failed

"Ours is an adversary system of

to

build

justice," and

one's
each

responsible for procuring the evidence it needs.

case.

party

is

James v.

Headley, 410 F.2d 325, 332 n.lO {5th Cir. 1969).
Thus,

even

reasonability
Fargo

if

the

mattered,

summary

2008

the

judgment.

investigation's

Court
"[T]he

would

still

plaintiff

substantive

grant
must

Wells

present

affirmative evidence in order to defeat a properly supported

motion for summary judgment.
evidence

is

likely

to

be

20

This is true even where the
within

the

possession

of

the

defendant, as long as the plaintiff has had a full opportunity
to conduct discovery."

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 257 (1986) (emphasis added).

a

swing

at

investigation,

discovering
but

he

Boyd could have taken

information

instead

struck

about

out

the

looking.

2008
Wells

Fargo's 2014 investigation was reasonable as a matter of law.
B. There Is No Evidence that Boyd Suffered Damages.

Wells Fargo is also entitled to summary judgment because

of Boyd's ^'failure to produce evidence of damage resulting
from a FCRA violation."

Nagle v. Experian Info. Solutions,

Inc., 297 F.3d 1305, 1307 (11th

Cir.

2002).

actual, punitive, and statutory damages.

Boyd alleges

Dkt. No. 1 at 4.

Actual damages are available for negligent FCRA violations,
while statutory and punitive are on the table as punishment
for

willful ones.

includes

reckless

15

U.S.C.

§§ 1681n,

disregard.

I68I0.

Collins

v.

Willfulness

Experian

Info.

Solutions, Inc., 775 F.3d 1330, 1336 (11th Cir. 2015).

As for actual damages, Boyd mostly alleges injuries that
pre-date his 2014 debt dispute.
Dkt.

No.

67-7

irrelevant:
furnisher's

at

7;

Dkt.

Dkt. No. 67-4 at 35:18-36:24;

No.

67-8

at

2-3.

These

are

Lost profits predating the alleged breach of the
investigation

recovery under FCRA."

duty

^^cannot

form

the

basis

for

Rambarran v. Bank of Am. Corp., No. 07-

21798-CIV, 2007 WL 2774256, at *6 (S.D. Fla. Sept. 24, 2007).

21

Boyd further alleges that in 2015, after disputing the
debt, he had to take a high-interest loan from a provider that

services people with bad credit.
69-2

K

5.

According

Dkt. No. 69-1 % 28; Dkt. No.

to the provider,

Boyd's

^'credit

was

perfect" and he got the best terms from it that he could have.
Dkt. No. 67-9 at 26:02-09.

Without evidence that Boyd applied

for a loan from a different provider, ^'the

damages

he

allege[s]

[are]

too

^lost opportunity'

speculative."

Casella

v.

Equifax Credit Info. Servs., 56 F.3d 469, 475 (2d Cir. 1995);
see also Davenport v. Sallie Mae, Inc., 124 F. Supp. 3d 574,
583 (D. Md. 2015), aff'd, 623 F. App'x 94 (4th Cir. 2015) (per

curiam) (unpublished opinion).
The last actual damage Boyd alleges is that his interest
rate

went from over 25% to 12% once the

dropped from his file.

Dkt. No. 69-2 H 5.

disputed debt was

But

[tlhere is no indication in the record that any
creditor
relied
on
its
knowledge
of
[Boyd's

disputed] account in deciding to set his interest
rates at a particular level.
Because a factfinder
would have to engage in impermissible speculation in '
order for [him] to recover these damages, they \
cannot withstand summary judgment.
Rambarran v. Bank of Am., N.A., 609 F. Supp. 2d 1253, 1266
(S.D. Fla. 2009).

As for statutory and punitive damages, the Court could
not

let

factfinder

them

survive

could

without

determine

22

holding
that

that

Wells

a

reasonable

Fargo's

2014

investigation was reckless (or worse).

But, for the reasons

in

that

Part

II.A,

the

Court

has

held

Wells

investigation was reasonable as a matter of law.

Fargo's

Thus, Boyd's

statutory and punitive damages claims must fail.
Wells Fargo is entitled to summary judgment because Boyd
has not created a genuine issue of material fact as to either
damages

or

the

reasonability

of

Wells

Fargo's

2014

investigation.
CONCLUSION

For the reasons set forth above.

Wells

Fargo's Motion

for Summary Judgment, dkt. no. 67, is GRANTED.

The Clerk of

Court is DIRECTED to enter the appropriate judgment and to
close this case.

SO ORDERED, this 14th day of December, 2016.

LrSA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

23