Seckinger v. Equifax Information Services, LLC
Filing
56
ORDER granting 44 Motion for Summary Judgment. Clerk is directed to prepare judgment closing case. Signed by Judge Lisa G. Wood on 3/27/18. (slt)
... DISTRICT COURT
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BRUNSWICK Diy.
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JBijitritt Court.21 m 2 55
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MALLIE J. SECKINGER,
Plaintiff,
CV 415-304
V.
EQUIFAX INFORMATION
SERVICES, LLC,
Defendant.
ORDER
Defendant
Equifax
Information
Services,
Inc.
moves
for
summary judgment on Mallie Seckinger's Fair Credit Reporting Act
(FCRA) claims.
&
54.
The
Doc. 44.
dispute,
misunderstanding
procedures.
clarifying
of
Since
Seckinger opposes.
however,
the
relevant
Seckinger
foundational
rests
is
discussion
See docs. 46, 50,
largely
legal
proceeding
of
those
on
Seckinger's
principles
pro
se,
principles
and
some
and
procedures is warranted.
I.
BACKGROUND^
In 2013, Seckinger noticed a change in the credit available
^
In deciding the motion, the Court views the evidence and draws
all reasonable inferences in favor of the nonmovant, Seckinger,
Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d
501, 507 (11th Cir. 2000)
.
AO 72A
(Rev. 8/82)
to
him.
Material
from
See
doc.
Facts).
Equifax,
47
He
and
at
2,
SI
5
(Seckinger's
investigated,
discovered
by
that
Statement
requesting
his
credit
of
information
information
included a loan whose legitimacy was ^^formally in dispute since
May 8, 2013."
Id. at 2, SISI 6, 9.
He notified Equifax of the
dispute, pursuant to the provisions of 15 U.S.C. § 16811, in
January 2014.
Id. at 3, SI 10; doc. 43 at 2, SI 8 (Equifax's
statement of material facts reflecting receipt of dispute letter
on January 19, 2014).
He requested further ^'reports"^ from
Equifax in 2014, and in each Equifax included the disputed loan
but
failed
dispute.
to
include
the
FCRA-required
notice
of
consumer
Id. at 3, SISI 11, 13; see also 15 U.S.C. § 16811(c)
(requiring, after a notice of dispute is provided by a consumer,
that ^'any subsequent consumer report containing the information
in
question
[shall]
clearly
note
that
it
is
disputed
by
the
consumer and provide either the consumer's statement or a clear
and accurate codification or summary thereof.").
action in November 2015.
In
^
2016,
He filed this
See doc. 1 (Complaint).
Seckinger applied for
a
credit card from
Wells
As discussed below, the proper FCRA-characterization of the
information Equifax provided to Seckinger is disputed.
Outside
of the technical discussion of that dispute, the Court uses the
term
^^report" colloquially
—
referring
generally
to
the
compilation
of
information
related
to
a
consumer's
creditworthiness, whether provided directly to the consumer or
to some third party.
Fargo Bank, and Equifax provided Wells Fargo a report that, he
contends,
ailed to clearly note that the loan in question was
disputed . . . and failed to provide either [his] statement or a
clear and accurate codification or summary thereof."
Doc. 47 at
5, SI 18.
Allegedly because of that failure, his application was
denied.
Id.
at
5,
SI
19.
Wells
Fargo
decision in a letter (^'the Letter").
notified
him
of
its
Id.^
Equifax contends that it is entitled to summary judgment
because
Seckinger
generated
a
containing
has
failed
''consumer
information
to
report,"
about
offer
as
the
any
evidence
defined
disputed
required dispute notice.
any
loan
See doc. 44 at 8.
there
is
clearly
no
no
Seckinger
question
evidence
evidence
of
of
a
violation
willful
contends that the
whether (if it does
Wells
of
the
the
Letter
FCRA,
without
the
FCRA, there
violation.
Fargo
the
it
Since it contends
Id.
Letter
at
raises
is
13-14.
a
jury
not prove outright that) Equifax
provided a report without noting the dispute.
(arguing
by
that
"establishes
the
Doc. 46 at 12-13
fact
that
Equifax
[pjrovided at least 1 Credit Report containing the information
^
The alleged violations occurring after the Complaint was filed
in 2015 are not before the Court.
The Court denied Seckinger's
motion to amend his Complaint.
See doc. 38.
However, as
explained below, Seckinger contends that the Letter is evidence
that Equifax had not, as of its date, included information about
his dispute of the loan on his credit report.
Accordingly, the
Court considers the letter's evidentiary value, if not the
alleged violation.
in
question
subsequent
to
receiving
Plaintiff's
Dispute
Statement without clearly noting that it is disputed and Equifax
also
failed
to
provide
either
the
consumer's
statement
or
a
clear and accurate codification or summary thereof in subsequent
credit reports.").
Equifax
provided to
constitutes
a
He also contends that the information that
him (the
report
without
Equifax
a
Information)
dispute
both
reference
reflects deficient reports to third parties.
itself
and
also
See doc. 46 at 9
(relying on report from Equifax to Seckinger, dated December 4,
2014).
II.
ANALYSIS
Summary judgment is properly granted when ^^the movant shows
/
that there is no genuine dispute as to any material fact and
[he] is entitled to judgment as a matter of law."
P. 56(a).
Fed. R. Civ.
Its intent is ^'to isolate and dispose of factually
unsupported
claims
or
defenses.
.
.
."
Celotex
Corp.
v.
Catrett, 477 U.S. 317, 323 (1986); see also Anderson v. Liberty
Lobby, Inc.,
All
U.S. 242, 249 (1986).
A factual dispute is
^genuine' . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party."
U.S. at 248.
will
be
Anderson, All
It, therefore, must be supported by evidence that
admissible
at
trial.
See
Fed.
R.
Civ.
P.
56(c)(2)
(allowing objection ''that material cited to support or dispute a
fact cannot be presented in a form that would be admissible in
evidence.").
The admissibility of evidence is determined by the
Federal Rules of Evidence.
See Heath v. Suzuki Motor Corp., 126
F.3d 1391, 1396 (11th Cir. 1997) (^^the admissibility of evidence
is a procedural issue, and therefore is governed by the Federal
Rules of Evidence.").
Substantively,
a
factual
dispute
is
^'material"
if
it
concerns ^^facts that might affect the outcome of the suit under
the governing law . . . ."
materiality
inquiry
is
Anderson,
independent
of
All U.S. at 248.
and
separate
''The
from
the
question of the incorporation of the evidentiary standard into
the
summary
judgment
determination.
materiality determination
rests on
That
the
is,
while
the
substantive law, it is
the substantive law's identification of which facts are critical
and which facts are irrelevant that governs."
Id.
Thus, the
Court must look to the FCRA to determine what facts are material
to Seckinger's claim.
The
FCRA
"consumer
ensure
credit
(15
reporting
"proper
U.S.C.
§
agencies
utilization"
transactions.
15
1681,
adopt
of
et
seq.)
reasonable
information
U.S.C.
§
1681.
requires
that
procedures"
used
in
Among
to
consumer
various
particular requirements is the obligation, triggered in part by
a
consumer's
notice
of disputed credit report information, to
note clearly "in any subsequent consumer report containing the
information
in
question,
. . .
that
it
is
disputed
by
the
consumer and provide either the consumer's statement [regarding
the
dispute]
thereof."
right
of
or
a
clear
and
accurate
15 U.S.C. § 1681i{b).
action
against
codification
or
summary
''^The FCRA creates a private
consumer
reporting
agencies
for
the
negligent, see 15 U.S.C. § I68I0, or willful, see 15 U.S.C. §
1681n,
violation
Collins
V.
of
Experian
any
Info.
duty
imposed
Sols., Inc.,
under
775
F.
the
3d
statute."
1330,
1333
(11th Cir. 2015) (citing Safeco Ins. of Am. v. Burr, 551 U.S.
47,
52 (2007)).
state
of
Willfulness, in the
mind
violations.
that
encompasses
FCRA
both
context, implies
knowing
and
a
reckless
See Safeco Ins. Co. of Am., 551 U.S. at 57-58.
Seckinger
alleges
that
Equifax
willfully
violated
FCRA's provisions concerning consumer-disputed information.
explains
that
limited
to
his
the
^^law
suit
failure
specifically focuses
of
the . Defendant
to
upon
the
He
and is
include
the
consumer[']s ^statement of dispute' in subsequent credit reports
of which the Defendant is clearly in willful noncompliance with
the law."
^
Doc. 3 at 8 (emphasis added).^
Equifax contends that.
This Court construes pro se pleadings liberally, but that
liberality does not allow it to act as de facto counsel.
See,
e.g.. Lacy v. BP P.L.C.,
F. App'x
, 2018 WL 500152 at * 1
(11th Cir. Jan. 22, 2018) (citing, inter alia, Campbell v. Air
Jamaica
Ltd.,
760
F.
3d
1165,
1168-69 (11th
Cir.
2014)).
In
particular, it may not
^rewrite a deficient pleading in order
to sustain an action.'"
Id. (quoting Campbell, 760 F. 3d at
1169))
.
While it is not absolutely clear to the Court that the
identified theory exhausts the possible theories of Equifax's
6
because
he
has
offered
no
evidence
that
it
generated
any
consumer report, it could not have willfully failed to include
his notice of dispute in any such report.
Doc. 44 at 13-14.
A. The Wells Fargo Letter
Se.ckinger
contends,
first,
that
the
Wells
Fargo
Letter
^^establishes as fact that Equifax [p]rovided at least 1 [c]redit
[rjeport
containing
the
information
in
question
subsequent to
receiving [p]laintiff's Dispute Statement without clearly noting
that it is disputed by the consumer . . . ."
Doc. 46 at 12.
Equifax responds that the Letter is inadmissible hearsay.
49 at 5.
Doc.
Seckinger strenuously objects to Equifax's evidentiary
challenge.
See doc. 50 at 5
whether
evidence
the
exists,
{''It is no longer a question of
it is
now
a
question
of
if the
evidence meets Local Rules [based upon the Defendant's Opinion],
lacks
a
citation
to
the
record
[ignoring
the
Declaration
of
Sally Seckinger], weather it is a narrative or not [based upon
the
Defendant's
opinion],
weather
the
adduced
documents
are
authentic by declaration of affidavit and the question as to IF
the adduced documents should be stricken from the record and not
considered
by
the
Court."
material in .original))
.
(spelling,
emphasis,
and
bracketed
Seckinger's outrage is misplaced.
liability under § 1681i, Seckinger's language leaves no room to
doubt his limiting intent.
1. Admissibility
The
question
Equifax
raises
is
Letter is admissible as evidence.
whether
the
Wells
Fargo
Inadmissible evidence is not
properly part of the record for summary judgment purposes.
See,
e.g., Charles Alan Wright, Arthur R. Miller, et al., lOA Fed. Prac. &
Proc.
Civ. § 2724
record
depends,
admissible
in
has
Court (and
presented
ultimately a
upon,
but
ed.
part,
evidence).
Seckinger
touches
(4th
on
Letter
jury)
certainly
doc.
objection
the
Letter
particular
question,
the
Cf.
(extent of summary judgment
whether
The
authenticity.
that
2017)
to
is
50
therefore,
is
a
allows
way
that
consider it.
not
at
is
in
limited
6
material
to,
(responding
inadmissible
by
is
whether
the
That question
the
to
Letter's
Equifax's
stating:
"The
plaintiff can only conclude, and rightfully so, that Defendant
is accusing the plaintiff of counterfeiting the Adduced Wells
Fargo document . . . .").
opinion
of
defendant's
Admissibility depends not upon the
counsel,
or
even
this
Court's
Local
Rules, but upon the Federal Rules of Evidence.
The
Federal
Rules
of
Evidence
define
"hearsay"
as
"a
statement" made by a "declarant" who is not "testifying at the
current
truth
trial
of the
801(a)-(c)
or
hearing" offered "in
matter
asserted
(defining
in the
"hearsay"
evidence
statement."
and
prove
Fed.
constituent
Obviously the Letter is not trial testimony.
8
to
R.
the
Evid.
terms).
Equally clear is
Seckinger's intent that its statements constitute proof of the
matters asserted (i.e., that Wells Fargo denied him credit on or
near
the
Letter's
September
2016
date
based
upon
contained in a report provided to it by Equifax).
information
See doc. 46
at 12-13 (arguing that the Letter creates a dispute of material
fact);
id.
at
15
(Letter's
statement
that
denial
of
credit
application was ^^based in whole or in part on information in a
consumer
report
Equifax).
(often
called
a
credit
report)
from
. . ."
The Letter's statements, therefore, are hearsay, and
^Mh]earsay is
not admissible," unless
a
federal statute,
the
Rules of Evidence themselves, or ^^other rules prescribed by the
Supreme Court" provide an exception.
There
hearsay.
Against
are
numerous
Fed. R. Evid. 802.
exceptions
to
the
prohibition
on
See, e.g.. Fed. R. Evid. 803 (Exceptions to the Rule
Hearsay
—
Regardless
of
Whether
the
Declarant
is
Available as a Witness); Fed. R. Evid. 804 (Exceptions to the
Rule Against Hearsay — When the Declarant is Unavailable as a
Witness); Fed. R. Evid. 807 (Residual Exception).
Neither party
has presented any evidence or argument that the Letter's author
(a
Mr.
Dee,
Senior
Vice
President
of
Operations) is unavailable as a witness.
Wells
Fargo's
Loan
See doc. 50 at 6-9
(responding to Equifax's challenge of the Wells Fargo Letter);
see also Fed. R. Evid. 804(a) (specifying criteria for finding a
declarant
^^unavailable").
Thus,
the
Letter's
admissibility
depends
upon
the
application
of
a
general
exception
or
the
residual exception.^
Among the
general exceptions to the
hearsay prohibition,
the most likely to be applicable to the Letter is the exception
for records of a regularly conducted' business activity, the socalled ^^business records exception."
Fed. R. Evid. 803(6).
In
order for that exception to apply, however, the proponent must
show that: (1) ^''the record was made at or near the time [of the
fact stated] by — or from information transmitted by — someone
with
knowledge; (2) the record was "kept in the course of a
regularly
"making
conducted
the
record
activity
was a
of
regular
a
business . .
and
(3)
practice of that activity."
Seckinger does not offer any argument concerning the
application of a hearsay exception to the Letter.
See doc. 50
at 6 ("The Plaintiff can only conclude, and rightfully so, that
the Defendant is accusing the Plaintiff of counterfeiting the
Adduced Wells Fargo document . . . ."). As discussed above, the
issue is not whether Seckinger "counterfeited" the document but
whether he has provided the foundation for its admissibility.
The burden to satisfy the requirements of an exception to the
rule against hearsay is on the proponent of the evidence.
See,
e.g.. United States v, Kennard, 472 F.3d 851, 855 (11th Cir.
2006).
Because he misunderstands Equifax' objection, Seckinger
has not asserted an exception, much less provided the basis for
its application.
Based solely on that omission, then, the
Letter might be deemed inadmissible.
However, given that he is
acting pro se, the Court must liberally construe his response.
See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998) (per curaim) ("Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.").
The Court thus considers
whether he has provided sufficient foundation, despite his
misunderstanding of the issue, to establish the application of a
hearsay exception.
10
Fed.
R.
Evid.
803(6)(A)-(C).
Each
of
those
facts
must
be
established by the testimony or certification of the ''custodian"
of the record.
Fed. R. Evid. 803(6)(D).
Equifax points out, and Seckinger identifies nothing that
contradicts,
record.®
that
no
adequate
foundation
is
apparent
in
the
See doc. 49 at 5 (noting that Seckinger "did not obtain
declarations from Wells
Fargo Bank to authenticate or explain
the document, and discovery has now
closed."); doc. 50 at 7-8
(responding that "there
to
Wells
Fargo
unambiguous
as
language
interpretation
beings.").
the
relying
is
no
need
document
which
on
is
the
speaks
not
have
declarations from
for
itself
open
unreliable
to
after
memories
in
the
of
clear
fact
human
In the absence of an adequate foundation to apply
the business records exception, the Letter remains inadmissible
hearsay.
®
Seckinger refers to his wife Sally Seckinger's declaration in
his response.
See, e.g., doc. 50 at 8.
Since Mrs. Seckinger
does not have direct personal knowledge of the circumstances of
the Letter's preparation, she can't establish the necessary
foundation.
Affidavits or declarations, after all, "must be
made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated." Fed. R. Civ. P.
56(c)(4).
"Additionally, the affidavit . . . must state the
basis for such personal knowledge."
Duke v. Nationstar Mortg.,
L.L.C., 893 F. Supp. 2d 1238, 1244 (N.D. Ala. 2012) (citing
Bruce Const. Corp. v. United States, 242 F.2d 873, 877 (5th Cir.
1957)).
In the absence of such a statement, indeed in the
absence of any apparent basis for her personal knowledge of the
relevant facts, Seckinger's declaration cannot provide the
requisite foundation for the hearsay exception.
11
The residual exception to the hearsay rule allows admission
of
hearsay
statement
statements
has
equivalent
not
otherwise
^^circumstantial
to
the
excepted
guarantees
guarantees
of
afforded
if:
(1)
the
trustworthiness"
by
the
specified
exceptions, (2) it is offered as evidence of a material fact,
(3) ^'it is more probative on the point for which it is offered
than any other evidence that the proponent can obtain through
reasonable
efforts[,]" and
(4)
admission
^'will
best
serve
the
purposes of these rules and the interests of justice."
Fed. R.
Evid.
hearsay
807(a).
exception
to
^Congress
be
used
circumstances.'"
intended
very
rarely,
the
and
residual
only
in
exceptional
United Techs, Corp. v. Mazer, 556 F.3d 1260,
1279 (11th Cir. 2009) (quoting United States v, Ingram, 501 F.3d
963, 967 (8th Cir. 2007)).
The
Court might
generously construe
concerning
the
difficulty
asserting
^^circumstantial
Nevertheless, the
of
Seckinger's arguments
counterfeiting
guarantees
residual exception
of
the
Letter
as
trustworthiness."
cannot apply here
because
he might have secured the necessary factual foundation for its
admission
under
the
business
records
exception
(assuming
such foundation was possible at all), but did not.
neither
more
probative
"than
any
other
evidence
that
Thus, it is
which
the
proponent can procure through reasonable efforts," nor does it
possess
circumstantial
guarantees
12
of
trustworthiness
^^equivalent" to
liberally
the
business
construing
records
Seckinger's
exception.
response,
Since,
the
even
Court
can
identify no applicable exception to the hearsay rule, it is not
admissible and thus not part of the summary-judgment record.
2, Substance
Even if the
create a genuine
Letter
were
admissible,
however, it does
dispute of material fact.
not
To create such a
dispute, it must support the inference that Equifax disclosed
information
about
the
disputed
about Seckinger's dispute.
indicates
several
Seckinger's
and
omitted
It simply does not.
reasons
application.
loan
It
for
Wells
is
possible
On its face, it
Fargo's
that
information
denial
those
of
reasons
include information about the disputed loan without the required
dispute notice.
In the absence of any contrary evidence, the
Court might give Seckinger the benefit of such an inference.^
^
Seckinger has submitted a declaration asserting that in
^^September 2016, Equifax provided Wells Fargo Bank a Credit
Report containing the loan information in question.
Apparently^
Equifax failed to clearly note that the loan was disputed by the
consumer and failed to provide my statement."
Doc. 51 at 22
(emphasis
added).
Mrs.
Seckinger
provided
a
declaration
including the same assertion verbatim.
Doc. 48 at 5.
However,
as
discussed
above,
there
is
no foundation
for
either
Mr.
or
Mrs. Seckinger's personal knowledge of the grounds for Wells
Fargo's denial of Mr. Seckinger's credit card application.
See
supra
n. 2.
It is not clear, therefore, whether their
interpretive assertions can be considered at all.
Considering the Letter's plain text, it is far from
^'apparent" that the disputed loan factored into Wells Fargo's
decision.
See doc. 46 at 15-16 (stating that the credit
13
However, Equifax has offered evidence that precludes it.
Equifax has submitted an affidavit from one of its Legal
Support Associates, stating
(based on the
affiant's
review
of
Equifax's records concerning Mr. Seckinger) that ^'[o]n January
26,
2015,
Equifax
deleted
the
Seckinger's Equifax credit file."
[disputed
l]oan
from
Mr.
Doc. 43-1 at 2, 5 13.
The
Letter indicates that the relied-upon credit score was ^^created"
on
September
6,
2016.
Doc.
46
at
16.
Given
Equifax's
application was denied ^'for the following reasons: Late payments
on accounts with other creditors (We look for a history of ontime payments)[;] Lack of recently reported open satisfactory
accounts on your credit report[; and] Insufficient number of
satisfactory accounts on credit report[.]").
It indicates that
Wells Fargo considered Seckinger's numerical credit score, as
determined by Equifax. Id. at 16. But it notes that the ^Mk]ey
factors" in the report ^'that negatively affected [his] credit
score [were]: [d]erogatory public record or collection filed[,]
[p]roportion of balances to credit limits is too high on
revolving accounts[,] [t]ime since delinquency is too recent or
unknown [, and] [t]oo many consumer finance company accounts[.]"
Id.
Nothing on the face of the Letter, therefore, states that
the disputed loan was included in the report and that the notice
of dispute wasn't.
As Equifax points out, Seckinger could have directed
discovery to Wells Fargo to illuminate the exact contents of the
report it considered, see, e.g.. Fed. R. Civ. P. 30 (a)(1)
(allowing a party to '""by oral questions, depose any person," and
that deponent's attendance may be compelled by subpoena);
31(a)(1)
(allowing
deposition
by
written
questions
and
permitting deponent's attendance to be compelled by subpoena);
34(c) (allowing a party to compel a nonparty to produce
documents or permit their inspection), but he chose to rest his
case on ^Mt]he language contained within the [Letter which] is
clear and concise." Doc. 50 at 7. The Letter's language may be
^'clear and concise," but, unexplained, it does not support the
conclusion Seckinger seeks to draw from it.
14
employee's
unrebutted
testimony
that
reference
to
the
loan,
disputed or not, was removed in January 2015, it could not have
factored
into
Wells
Fargo's
decision
in
September
However, since the Letter's substance is inadmissible
2016.
hearsay,
the Court need not grapple with the precise inferences that may
permissibly be drawn from the Letter itself.
B. The Equifax Information
Seckinger
denied
argues
because
he
that
has
summary
provided
judgment
an
^'Equifax
should
Generated
Report of the Plaintiff dated December 4, 2014."
That
document
contains
information
indication of the dispute.
Id.
about
also
the
be
Credit
Doc. 46 at 9.
loan,
but
no
It also, he argues, ^^shows that
there were no less than 17 Credit Reports . . . issued by the
Defendant to
various third
parties and/or institutions
during
the time of Equifax receiving [sic] the Plaintiff's statement of
dispute on January 19, 2014 and the . . . date" of the report
issued to him.
Id. at 9.
1. The December 4, 2014 Report
As to the document itself, Equifax argues that since it was
issued
to
constitute
required.®
Seckinger
a
and
^'consumer
not
to
report" for
Doc. 49 at 7-10.
a
third
which
a
party,
dispute
it
cannot
notice is
It also disputes his construction
Equifax also asserts an evidentiary objection to the report.
15
of the information it contains as reflecting reports to third
parties.
Id.
asserted
at
10-14.
distinction
Seckinger
between
replies
^^consumer
reports"
that
Equifax's
and ''consumer
disclosures" amounts to an "introduc[tion] of synonyms to divert
attention
"Credit
from
the
Report."
irrefutable"
Doc.
50 at
fact
10.
that
He
the
relies
document
is
heavily on
a
his
application of the Federal Trade Commission (the FTC) website's
description
of
characterization.
a
"credit
report"
in
support
of
his
See id. at 11-13.
First, Seckinger's reliance on the FTC's description of a
"credit
report"
is
misplaced.
A
federal
agency's
See doc. 49 at 4-5.
It points out that this document too is
"wholly unauthenticated by declaration or affidavit." Id. at 4.
Seckinger objects to the challenge, but as in the case of the
Letter, he fails to address the real evidentiary issue.
See
doc. 50 at 15-18.
The focus of Equifax's argument (although
they have not cited to it) is Fed. R. Evid. 901, which requires
the proponent of a piece of evidence to "produce evidence
sufficient to support a finding that the item is what the
proponent claims it is."
Fed. R. Evid. 901(a).
The Court is
not convinced that the document would be admissible, but also
cannot say that it would not.
See, e.g.. In re Intern. Mgmt.
Assocs., LLC, 781 F.Sd 1262, 1267 (11th Cir. 2015) (noting that
the "authentication burden . . . is a light one" that can be met
"with
circumstantial
evidence
of
the
authenticity
of
the
underlying documents").
To the extent that Seckinger relies on
its contents, it is also unable to identify any hearsay
exception
which
would
allow
the
statements
contained
in
the
document, even if the document were otherwise admissible, to be
admitted.
It is possible, however, that such statements would
be non-hearsay statements by an opposing party.
See Fed. R.
Evid. 801(d)(2).
Since Equifax has responded substantively to
Seckinger's arguments and in consideration of his pro se status,
the Court will not rest its decision on the evidentiary issues.
16
interpretations
empowered
Court
to
is
ambiguous
enforce
are
required
interpretations
(i.e.,
of
""^a
are
give
embodied
in
(2000);
see
e.g..
Defense
Council, Inc.,
statutes
to
that
which
^Meference"
them
adjudication
Christensen
also,
in
entitled
to
formal
rulemaking").
terms
effect)
agency's
or
it
(i.e.,
when
formal
is
the
those
actions
notice-and-comment
v. Harris Cnty., 529 U.S. 576, 587
Chevron
467
U.S.A,
v.
Natural
U.S 837, 842-45 (1984)
Resources
(discussing
principles courts should apply to determine deference owed to an
agency's interpretation of a statute it administers).
Informal
agency interpretations are not entitled to such deference.
e.g.,
Christensen,
529
U.S.
at
586-87.
See,
"Instead,
interpretations contained in formats such as opinion letters are
^entitled to respect' . . ., but only to the extent that those
opinions
have
^the power to persuade,' [cit.]."
(quoting
Skidmore
v.
(citation omitted).
only
entitled
ambiguous.
to
Swift
&
Co.,
323 U.S.
134,
Id. at 587
140
(1944))
Even then, an agency's interpretation is
deference
when
the
term
interpreted
is
See Chevron, U.S.A., Inc., 467 U.S. at 842-43 ("If
the intent of Congress is clear [i.e., clearly expressed in the
statute's text], that is the end of the matter; for the court,
as well as the agency, must give effect to the
unambiguously
expressed intent of Congress.").
There is no evidence that the website Seckinger relies upon
17
is (or is even based upon) the FTC's formal interpretation of
the
FCRA.
See
doc.
without citation
adjudication).
to
50
at
24-28
(printout
any formally adopted
of
FTC
regulation
webpage,
or formal
As such, that interpretation is relevant only to
the extent that it has ^'the power to persuade," which here is
not
much.
As
discussed
below,
courts
have
considered
the
statutory language at issue,® and balanced against that authority
the FTC's website has vanishingly little power to persuade.
Seckinger
distinction
contends
between
that
a
Equifax'
^^consumer
very
invocation
report"
and
a
of
the
^^consumer
disclosure" raises a question of fact, as he proposes to prove
that the document is a "report" within the meaning of the FCRA.
Doc. 46 at 10-11.
is
a
legal
—
As Equifax rightly points out, however, there
not
factual
—
distinction
between
reports
prepared for third parties and reports prepared for the consumer
himself.
See
(discussing
15
report," and
doc.
49
at
10;
CollinSf
U.S.C. § 1681a(d)(1)'s
noting that "a
775
definition
F.3d
at
1334
of "consumer
^consumer report' is communicated
® The fact that courts have undertaken to construe the statute's
text implies that there is no ambiguity, as would require the
Court to rely on administrative interpretation.
After all,
agency interpretation is only relevant "if the statute is silent
or ambiguous with respect to the specific issue . . . ."
Chevron^ U.S.A., Inc., 467 U.S. at 843.
The judicial analysis
suggests
that,
while
perhaps
complicated
and
confusingly
articulated, the statutory definition of "credit report" and its
relation
to
disclosures
to
consumers
ambiguous.
18
themselves
is
not
[to a potential third party creditor] by the consumer reporting
agency . .
Spector v. Equifax Info, Servs., 338 F. Supp. 2d
378, 379 (D. Conn. 2004) (discussing contents of a consumer's
^^credit file," and noting that ^'[w]hen released to a creditor,
the file is termed a
released
to
a
^credit report' or ^consumer report'; when
consumer,
disclosure.'"); Larson
v.
the
file
is
termed
a
^consumer
Trans Union, LLC, 2013 WL 5665629 at
*4 (N.D. Cal. Oct. 15, 2013) (report prepared for a consumer is
^^something separate and distinct from a ^consumer credit report'
prepared for third parties" under the FCRA and that ^'[cjourts
expressly
caution
against
conflating
these
two
types
of
documents . . . ."); see also Cousin v. Trans Union Corp., 246
F.3d 359, 367-68 (5th Cir. 2001) (recognizing that the argument
that reports issued to consumer might not qualify as ^^consumer
reports" '^may
because
court).
the
be
valid," but
issue
The
was
not
distinction
documents are called.
declining
properly
applies
to
consider
presented
to
regardless
of
argument
the
what
trial
the
Compare Fuges v. Sw. Fin. Servs., Ltd.,
707 F.3d 241, 246 n. 7 (3d Cir. 2012) (recognizing distinction
between ^'consumer report" and ^'credit report"), with Johnson v.
Equifax,
Inc.,
510
F.
Supp.
2d
(recognizing distinction between
638,
645
(S.D.
Ala.
2007)
consumer report" and ^^consumer
disclosure").
Since the information was provided to Seckinger, and not a
19
third-party
potential creditor, it cannot
consumer report.
Hibernia
Nat'1
itself constitute
a
Johnson, 510 F. Supp. at 645 (citing Hyde v,
Bank,
861
F.2d
(^^Reports
prepared
solely
for
^consumer
reports'
under
the
446,
the
449
(5th
consumer
FCRA.").
do
Cir.
not
Whether
1988))
constitute
or
not
it
includes a notice of Seckinger's dispute, therefore, the report
itself
does
not
create
a
dispute
of
material
fact
as
to
Equifax's alleged willful violation of the FCRA.
2. Evidence of further reports
Seckinger
also
contends
reflects
other
reports, provided to third parties, evidencing violations.
See,
e.g., doc. 46 at 11-12.
that the
document
Equifax responds that the identified
^^reports," in fact, reflect ^"inquiries" to which it ^'it has no
record of issuing consumer reports in response . . . ."
at
11.
Equifax
supports
this
contention
by
its
Doc. 49
employee's
affidavit, stating that it ^^has no record of issuing a consumer
report
containing
[information
about
January 19, 2014 to January 26, 2015."
at
3-4,
14-15.
Seckinger
the
disputed
loan]
from
Doc. 49 at 14; doc. 43-1
replies
that,
since
Equifax
concedes it does not keep records concerning its responses to
those
inquiries,
''the
Defendant
cannot
adduce,
by
its
own
admission, any evidence that it did not issue FTC defined Credit
Reports to the
seventeen inquires."
Doc.
50 at 14; see also
doc. 43 at 3, 1 14 (stating that "[a]s a general matter, Equifax
20
does not keep copies of consumer reports it issues . . .
Seckinger misconstrues the
bears
the
burden
of
proving
burden of proof.
his
claims.
A plaintiff
Rule
56
expressly
allows a summary-judgment movant to support his assertion of an
absence of any genuine dispute of material fact by, among other
avenues, ^'showing . . . that an
admissible
evidence
to
support
adverse party cannot produce
the
fact."
Fed.
R.
Civ.
P.
56(c)(1)(B).
'''The [summary-judgment] movant has the burden of
showing
there
that
is
no
genuine
issue
of
fact,
but
the
plaintiff is not thereby relieved of his own burden of producing
in turn evidence that would support a jury verdict.^'
477
U.S. at 256 (emphasis added).
Anderson,
In response to a
properly
supported summary judgment motion, "the plaintiff must present
affirmative evidence" sufficient for a jury to return a verdict
in
his favor.
Id. at 257 (emphasis added).
When considered
through the correct conceptual lens, Seckinger's argument fails.
In order to prevail on his claim, Seckinger must present
admissible
evidence
sufficient
to
allow
a
jury
to
find
that
Equifax disclosed the disputed loan sometime after it received
his
notice,
but
willfully
failed
notation along with the disclosure.
to
include
the
required
It is not enough if Equifax
reported the disputed loan, at some time, or if Equifax omitted
the
dispute
disclosed.
disclosure,
if
the
loan
itself
was
not
also
Given Seckinger's specification of his claim, it is
21
not even enough that Equifax disclosed the loan and failed to
disclose the dispute -- he must also show that it acted with the
requisitely culpable state of mind.
The disputed information
would simply not allow a jury to infer that Equifax willfully
violated the FCRA.
Seckinger only argues that the document ^'clearly shows that
there
were
no
less
than
17
Credit
Reports
generated
by
the
Defendant and passed on to various 3rd parties and institutions"
during the relevant period.
Doc. 46 at 11.
There are, however,
more than thirty ^^inquiries" listed in the cited section during
the relevant period.
5ee id. at 26-27.
Further, several of
the entries appear to indicate Equifax-internal inquiries, while
others appear to indicate inquiries to which only Seckinger's
name and address would have been disclosed.
doc.
49
at
identifiers
indicate
12-13
in
which
asserts or how.
(discussing
the
of
list
the
of
the
implications
inquiries).
entries
See id,; see also
makes
the
of
the
Seckinger
^^clear"
prefix
does
showing
not
he
From the document alone, no reasonable jury
Both Seckinger and Equifax appear to refer to the number of
companies who made the inquiries, but neither discusses the
separate ^'inquiries" identified by date. Compare doc. 46 at 11,
with doc. 49 at 10 (referring to ^'the seventeen inquiries
listed" in the document).
The apparent distinction between
inquirers and inquiries, see doc. 46 at 26-27 (listing
''inquiries" and identifying both "Company Information" and
"[i]nquiry [d]ateCs;" (emphasis added)), and the parties'
failure to discuss it only emphasizes the attenuation of
Seckinger's assertion of what the document "clearly shows."
22
could find in Seckinger's favor.
Seckinger
might
still
prevail
if
nothing
directly precluded the inference that
explained
above,
however,
he
Equifax's
Equifax
has
""no
record
of
the
wishes to
employee's
affidavit disposes of that possibility.
that
in
The
generating
record
draw.
As
unrebutted
affidavit states
a
consumer
report
containing information about the [disputed loan] subsequent to
its receipt of [Seckinger's notice of dispute], from January 19,
2014
through
Seckinger
January
might
have
26,
2015."
investigated
the inquiring companies listed.
The
record,
those
therefore,
responses
Seckinger's
dispute.
the
The
the
43-1
at
information
4,
f
15.
reported
to
He has apparently not done so.
contains
disclosed
Doc.
no
affirmative
loan
fact
without
that
some
evidence
also
that
disclosing
response
to
the
indicated inquiries was provided is simply not enough to raise a
genuine dispute of material fact.
III. CONCLUSION
For
the
reasons
explained
summary judgment is GRANTED.
above,
Doc. 44.
Equifax's
motion
The Clerk of Court is
DIRECTED to prepare an appropriate order closing this case.
23
for
so ORDERED, this 27th day of March, 2018.
HON.i^ISA GODBEYLWOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN
24
A0 72A
(Rev. 8/82)
DISTRICT OF GEORGIA
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