Cameron v. Greater New Orleans Federal Credit Union

Filing 72

ORDER AND REASONS granting 53 Motion for Summary Judgment. Plaintiff's claims against Defendant Experian are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo. (Reference: 16-12676)(ecm)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES CAMERON

CIVIL ACTION

VERSUS

NO: 16-8514 c/w 16-12676
(APPLIES TO 16-12676)

GREATER NEW ORLEANS
FEDERAL CREDIT UNION, ET AL.

SECTION: “H”(4)

ORDER AND REASONS
Before the Court is Defendant Experian Information Solutions, Inc.’s
Motion for Summary Judgment (Doc. 53). For the following reasons, this
Motion is GRANTED.
BACKGROUND
Plaintiff James Cameron brings this action pursuant to the Fair Credit
Reporting Act (“FCRA”). Specifically, he alleges that Defendant Greater New
Orleans Federal Credit Union (“GNO”) provided, and that Defendant Experian
Information Solutions, Inc. (“Experian”) maintained, inaccurate and false
information on his credit report relative to a $14,284 trade in violation of the
FCRA. He alleges that he suffered damages as a result of Defendants’ actions,
including mental and emotional distress, denial of credit, and receiving credit
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with a higher interest rate. Plaintiff has resolved his claims against Defendant
GNO. His claims against Experian are the subject of the instant Motion for
Summary Judgment.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”1 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”2
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor.3 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.”4 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.”5 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonFed. R. Civ. P. 56(c) (2012).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
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movant would bear the burden of proof at trial.”6 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.”7

Additionally, “[t]he mere argued existence of a factual

dispute will not defeat an otherwise properly supported motion.”8
LAW AND ANALYSIS
Plaintiff asserts 4 claims against Defendant Experian: (1) failure to
follow reasonable procedures to assure maximum possible accuracy when
preparing consumer reports about him, in violation of 15 U.S.C. 1681e(b); (2)
failure to provide all relevant information to the data furnisher in connection
with its reinvestigation of his dispute and failure to consider all relevant
information regarding his dispute in, in violation of 15 U.S.C. § 1681i(a)(2); (3)
failure to maintain reasonable procedures designed to prevent the
reappearance of previously deleted material in his credit file, in violation in 15
U.S.C. § 1681i(a)(5); and (4) failure to provide a description of its
reinvestigation procedure at his request, in violation of 15 U.S.C. § 1681i(a)(7).
Defendant moves for summary judgment, arguing that Plaintiff has submitted
insufficient evidence to support these claims. Defendant also argues that
Plaintiff’s claims must be dismissed because he has suffered no compensable
damages. Because the Court finds the damages issue dispositive of the matter,
it will address that issue first. It will then consider the sufficiency of the
evidence relative to each of Plaintiff’s claims.

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
7 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
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I. Damages
The provisions of the FCRA giving rise to civil liability are codified at 15
U.S.C. §§ 1681n and 1681o.

These provisions provide for three types of

damages depending upon whether the violation in question was willful or
negligent. If a Plaintiff can prove a willful violation, he is entitled to either
actual or statutory damages and, at the court’s discretion, punitive damages. 9
If, however, the allege violation is merely negligent, a plaintiff is only entitled
to actual damages.10
A. Plaintiff Has Submitted No Evidence of a Willful Violation
The Court has reviewed the evidence submitted by the parties and finds
that no reasonable fact finder could find the alleged violations to be willful.
Where a violation has been found to be willful, “a consumer reporting agency
has typically misrepresented or concealed some or all of a credit report from a
consumer.”11 “To be willful, such misrepresentations must be the result of
either a knowing violation or reckless disregard of the law.”12 Though Plaintiff
recites the relevant law regarding willful violations, he cites no evidence that
Defendant committed either a knowing violation or acted in reckless disregard
of controlling law. “The record does not reveal . . . any intention to thwart
consciously [Plaintiff’s] right to have inaccurate information removed promptly
from his report.”13 At most, the evidence supports a finding that Defendant
acted slowly in removing a disputed item from Plaintiff’s credit report. Though

15 U.S.C. § 1681n.
15 U.S.C. § 1681o.
11 Cousin v. Trans Union Corp., 246 F.3d 359, 372 (5th Cir. 2001).
12 Toliver v. Experian Info. Sols., Inc., 973 F. Supp. 2d 707, 732 (S.D. Tex. 2013)
(citing Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 127 S.Ct. 2201, 2208–10, 167 L.Ed.2d
1045 (2007)).
13 Stevenson v. TRW Inc., 987 F.2d 288 (5th Cir. 1993).
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this action might prove negligent, it does not support a finding of willfulness.
Accordingly, Plaintiffs § 1681n claims must be dismissed.
B. Plaintiff Has Submitted No Evidence of Actual Damages
Caused by Experian
Having found the Plaintiff has provided no evidence of willfulness,
Plaintiff’s only remaining claim is for negligence under § 1681o. As noted
above, to prevail on his claims arising under § 1681o, Plaintiff must
demonstrate actual damages. Plaintiff’s alleged damages fall into two broad
categories: (1) denial of credit or receipt of credit at a higher interest rate, and
(2) emotional distress damages. Defendant argues that Plaintiff has submitted
no evidence to prove damages, mandating dismissal of his claims. The Court
will address each category of damages in turn.
1. Denial of Credit
A plaintiff may recover compensatory damages where a negligently
erroneous credit report results in denial of credit or receiving credit at a higher
interest rate.14

To prevail on this claim, Plaintiff must submit evidence

creating a genuine issue of material fact as to whether the issuance of credit
by a potential creditor was affected by Defendant’s alleged violations of
FCRA.15 Though Plaintiff alleges that he was denied credit or received a
higher interest rate as a result of Defendant’s actions, he points to no evidence
in support of this contention. Indeed, the only evidence of credit denial on the
record indicates that the potential creditors relied on Equifax credit reports,

Cousin v. Trans Union Corp., 246 F.3d 359 (5th Cir. 2001).
See Bacharach v. Suntrust Mortg., Inc., 827 F.3d 432, 435 (5th Cir. 2016), cert.
denied, 137 S. Ct. 1083 (2017).
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not Experian credit reports.16 Accordingly, the Court finds that Plaintiff’s
actual damages claims arising from adverse credit actions must fail.
2. Emotional Distress
“The FCRA permits recovery for humiliation and mental distress and for
injury to one’s reputation and creditworthiness.”17 An award of emotional
distress “must be supported by evidence of genuine injury, such as the evidence
of the injury party’s conduct and the observations of others.”18 A plaintiff’s
conclusory assertions of emotional distress damages are insufficient to
establish damages.19 “[A]n FCRA plaintiff seeking emotional distress damages
is required to present evidence of genuine injury, such as the evidence of the
injured party's conduct and the observations of others, and to demonstrate a
degree of specificity which may include corroborating testimony or medical or
psychological evidence in support of the damage award.”20 Here, Plaintiff has
submitted no evidence of emotional distress beyond the bare assertions of
“aggravation,

mental

anguish,

depression,

embarrassment” contained in his pleadings.

relationship

turmoil,

and

This is insufficient at the

summary judgment stage of the proceedings.21 Accordingly, Plaintiff’s claims
for emotional distress damages are dismissed.
In conclusion, because Plaintiff cannot demonstrate that he suffered
actual damages as a result of Experian’s alleged FCRA violations, his claims

Doc. 54-8.
Bacharach v. Suntrust Mortg., Inc., 827 F.3d 432, 435–36 (5th Cir. 2016), cert.
denied, 137 S. Ct. 1083 (2017).
18 Cousin, 246 F.3d at 371.
19 Bacharach, 2015 WL 6442493, at *3.
20 Wagner v. BellSouth Telecommunications, Inc., 520 F. App’x 295, 298 (5th Cir.
2013); see also Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173 (10th Cir. 2013).
21 Indeed, Plaintiff fails to include even an affidavit supporting these allegations.
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must be dismissed. Nevertheless, in an abundance of caution, the Court will
address the specific evidentiary support for each of Plaintiff’s claims.
II. Evidence Supporting Each of Plaintiff’s Claims
A. Failure to Follow Reasonable Procedures to Assure Maximum
Possible Accuracy in Violation of 15 U.S.C. 1681e(b)
Plaintiff avers that Defendant failed to maintain procedures designed to
assure maximum possible accuracy in its reports. To prevail on this claim,
Plaintiff must adduce evidence that “(1) inaccurate information was included
in a consumer's credit report; (2) the inaccuracy was due to defendant's failure
to follow reasonable procedures to assure maximum possible accuracy; (3) the
consumer suffered injury; and (4) the consumer's injury was caused by the
inclusion of the inaccurate entry.”22 Defendant contends that this claims must
fail because (1) Plaintiff has not submitted evidence to prove that the disputed
information is inaccurate; (2) Plaintiff has failed to show sufficient evidence to
prove that Experian issued an inaccurate credit report concerning the disputed
trade line; and (3) there is no evidence from which a reasonable juror could
conclude that Experian’s procedures were unreasonable. Though the Court
finds that genuine issues of material fact exist as to the first and third
arguments, Defendant prevails because, as outlined above, Plaintiff has
submitted no evidence that a report containing inaccurate information was
ever issued by Experian or relied on by any creditor.

Zala v. Trans Union, LLC, No. CIV. A. 3:99-CV-0399, 2001 WL 210693, at *3
(N.D. Tex. Jan. 17, 2001)(citing Philbin v. Trans Union Corp., 101 F.3d 957, 963 (3d
Cir.1996)).
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B. Failure to Provide All Relevant Information to the Data
Furnisher in Connection with its Reinvestigation of his Dispute and
Failure to Consider All Relevant Information Regarding his Dispute
in Violation of 15 U.S.C. § 1681i(a)(2)
Plaintiff next contends that, during its reinvestigation of the disputed
trade line, Defendant did not forward all relevant information to GNO and
failed to consider relevant information in violation of 15 U.S.C. §§ 1681i(a)(2).
This claim appears to be centered on Plaintiff’s complaint that Defendant did
not forward a copy of his dispute letters to GNO along with the Automated
Consumer Dispute Verification (“ACDV”) form sent to GNO to verify the
accuracy of Experian’s information relative to the disputed account. It is
undisputed that, upon receipt of Plaintiff’s dispute letter, Defendant generated
an ACDV outlining Plaintiff’s contention that the GNO trade line should have
aged off of his report. An ACDV for “is an accepted method of communicating
the details of a customer dispute,” and a credit agency need not include a copy
of a consumer’s dispute letter with an ACDV as long as the form adequately
apprises the creditor of the nature of the dispute.23 Here, Plaintiff’s dispute
letters, though numerous, contain no specific information or supporting
documentation that would have aided GNO in a review of his account. Plainitff
points to no specific evidence in the record indicated that Defendant failed to
forward any supporting documentation to GNO. Accordingly, the ACDV sent
in this matter was sufficient to apprise GNO of the nature of the dispute, and
Plaintiff’s claims in this regard fail.

Morris v. Trans Union LLC, 420 F. Supp. 2d 733, 753 (S.D. Tex. 2006), aff'd, 224
F. App'x 415 (5th Cir. 2007).
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C. Failure to Maintain Reasonable Procedures Designed to
Prevent the Reappearance of Previously Deleted Material in his
Credit File, in Violation of 15 U.S.C. § 1681i(a)(5)
Plaintiff next contends that Defendant violated 15 U.S.C. § 1681(a)(5) by
failing to take steps to ensure that deleted information did not reappear on his
credit report. Defendant argues that this claims must fail because Plaintiff
has submitted no information indicating that any deleted information ever
reappeared on his credit report. The Court agrees. The record indicates that
the disputed trade line was automatically purged from Plaintiff’s account in
September of 2015. Plaintiff points to no evidence that the information ever
reappeared on his report. Accordingly, this claim is dismissed.
D. Failure to provide a description of its reinvestigation
procedure at his request, in violation of 15 U.S.C. § 1681i(a)(7).
Plaintiff finally alleges that Defendant failed to timely provide a
description of its reinvestigation procedures upon his request, in violation of
15 U.S.C. § 1681i(a)(7). The evidence before the Court shows otherwise. It
appears that Plaintiff first requested this information in a letter postmarked
July 22, 2015. Experian mailed a response to this request on August 3, 2015,
within the 15 days required by the FCRA. Accordingly, this claim fails.

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CONCLUSION
For the forgoing reasons, Defendant’s Motion for Summary Judgment is
GRANTED. Plaintiff’s claims against Defendant Experian are DISMISSED
WITH PREJUDICE.
New Orleans, Louisiana this 19th day of July, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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