Alston v. Branch Banking & Trust Company et al

Filing 77

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 9/15/2017. (kns, Deputy Clerk)(c/m 9/15/17)

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.Ff'.r-) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division [ lO/1 SfP /5 .:. ii: 31 C I' * . YVONNE R. ALSTON, * .••• , 'i , CaseNo.: G.JH-IS-3100 Plaintiff, * v. * BRANCH BANKING & TRUST COM I' ANY, et aI., * Defendants. * * * * * * * * * * * * * * MEMORANDUM OPINION Pm .Ie plaintilfVvonne Credit Reporting Act ("FCRA"). Collection Act ("MCDCA"). Consumer Protection Defendants ("Equitax"). R. Alston's complaint 15 U.S.c. alleged violations ~ J 681 el self .. the Maryland Consumer Act ("MCPA"). Inlormation Solutions. ("1313&1""). Equitax Information Inc. ("Experian"). Inc. ("'Midland") No. 27.' Alston moves to alter or amend this Court's Services. LLC Trans Union. LLC ("Trans (collectively. Order regarding "Defendants''). ECF her claim under 15 U.S.c. ~ 1681i(a) (Count V). lOCI' No. 67. and Trans Union moves for summary judgment claim under 15 USc. Debt Md. Code Ann .. Com. Law ~ 13-101 el self. against Union"). and Midland Credit Management. Alston's of the Fair Md. Code Ann .. Com. Law ~ 14-201 el self .. and the Maryland Branch Banking and Trust Company Experian originally regarding ~ 1681 e(a) (Count lII). ECF No. 71-1. No hearing is necessary resolve these motions. See Loc. R. 105.6 (D. Md. 2016). For the reasons that follow. Alston's I Previous Orders issued by this Court. as well as stipulation involving certain dclcndants. have signilicantly narrowed the claims and defendants. 5;('(' ECF Nos. 50. 57 68. and 76. to Motion to Alter or Amend is denied. and Trans Union's Motion lilr Summary .Judgment is granted. I. BACKGROUND! A. Factual Background Alston's complaint stems li.OI11 initial dispute with I3I3&T whereby Alston. on May 31. an 2014. requested a payoff statement residence (the "Note"). 'i 10. On .June 4. 2014. BB&T notice of transfer of servicing. sent in that correspondence additional "was not certilied holder of the Note and. therefore. through December ultimately loan on her primary sent Alston a payoff statement. and a copy of the Note. Id. ~ 12. According rounds of correspondence. 2014. Alston demanded retinance o. 27 ~~ 8.9. BB&T acquired the loan in .June 2013 Virginia ECF Bank. ECF No. 27 Ileritage Irom BB&T for the mortgage to Alston. the Note as a true and accurate copy:' /d. Alston stated that BB&T tailed to verify that it was the should have ceased assessing that BB&T apply her mortgage provided Alston with a payolT statement interest on her loan aner .June payments submitted Irom.June 2014 payments which. contrary to Alston' s demand. directed to the interest due on the Note. Id. ~ 23. Alston then sent a dispute letter to three consumer reporting agencies ("CRAs"). Experian. and Trans Union. in which she stated that the balance on her mortgage incorrect. According payments whether Equif(IX. account was to Alston. rather than a balance 01'$131.809. her report should have shown a balance 01'$129.463.40 to rellect application "investigate 13. Following 2014 to her principal balance only. /d. ~ 22. On .January 4. 2015. BB&T a portion of her monthly mortgage a to her principal lAlston of her .June 2014 through December 2014 balancc only. lei. ~ 24. Alston asked that the CRAs J attempted to pay the debt in full and whether BI3&T provided the :! The complete factual and procedural background. as set forth in AlstOl"s Amended Complaint. is detailed in this Court's August 26. 2016mcmoranduIll opinion. ECF No. SO. Only topics relevant to the pending motions arc rcpeated herein. 2 necessary documentation" for her to complete the payoff. 111. Alston alleges that "[ujpon inliJrmation and beliet:"" Experian and Trans Union lorwarded notice of her dispute to B13&T. 1 but Equifax did not. Id ~~26. 31: Alston alleges that 13B&T. upon recci\'ing notice of her dispute Irom Experian and Trans Union. did not conduct an independent investigation of her dispute. Instead. 1313&Tonly verified that the inlonnation reported to the eRAs was consistent with the inlormation that 1313&Thad previously reported and did not notate that Alston's account was in dispute. Id 'i'i 32-33. On or about January 15.2015. Experian responded to Alston with the results of its investigation into her dispute but did not provide her with a copy of her full credit file. Id '127. Experian did not change her account as a result ofthc dispute. and Alston alleges that Experian "relied on 1313&1"s conclusions and parrotcd the results of 1313&1"s purported investigation" instead of independently investigating the dispute. Id On January 9. 2015. Trans Union provided Alston with the result of its investigation of her dispute. and. like Experian. continued to report Alston's mortgage balance as $131.809. Id '129. Alston alleges that Trans Union. like Experian. did not indepcndently invcstigatc hcr dispute but instead relied on 13B&1"spurportedly inadequate invcstigation. Id Trans Union providcd Alston with a copy of her credit file. which reveal cd that Midland. a debt collcction and information managcment company. id. ~ 4. had obtained a copy of her consumer rcport Ii'om Trans Union on August 22. 2014. Id ~ 30. Alston allcges that she contacted Midland and spokc with an employee who "aeknowledge[ dJ that Midland did not have a reason to obtain her report:' 111. Alston contends that Midland obtain her report as part of its scheme to pull individuals' consumer reports in order to identily potcntial creditors to solicit and olTer its dcbt collcction services. Id According to Alston. Trans Union is aware that Midland improperly pulls consumer .' Alston and Equifax settled the dispute following Alston's filing orthe Motion Eel' No. 68. 3 10 Alter or Amend. ECF No. 67 . ."leI.! reports for these purposes and yet has not established any procedures to verify that Midland is obtaining credit reports lor permissible purposes. Jd. Finally. on November 4,2015, Alston sent another set of dispute letters to the CRAs, indicating that the balance of her mortgage account was still inaccurate and should be reported as $121,643,91. Iti. '142. B, Procedural Backl!;round Alston initiated this action in State Court on September 8, 2015 alleging various claims against BB&T, Equifax, Experian, and Trans Union. ECF No, 2, Trans Union removed the case to this Court on October 13,2015, ECF No, I. On August 26, 2016, following tiling of Alston's Amended Complaint, ECF No. 27, this Court ruled on a number of motions, including, BB&T's Motion to Dismiss Alston's Amended Complaint, ECF No. 32, and Trans Union's Motion for Judgment on the Pleadings, ECF No. 44. See ECF No, 50, In resolving the motions, the Court: I. Dismissed in part Alston's 15 U.S.c. ~ 168Is-2(b) claim against BB&T (Count I): 11. Denied Trans Union's Motion for Judgment on the Pleadings regarding Alston's ~ 168Ie(a) Claim Against Trans Union (Count Ill): 111. Dismissed Alston's ~ 1681i(a)(6)(B)(ii) claim against Experian (Count IV): IV. Dismissed in part Alston's ~ 186Ii(a) Claim Against Experian and Trans Union (Count V): and \', Dismissed Alston's MCDCA and MCPA claims against BB&T (Counts VI and V[[),~ Following this Order, on October II. 2016, the Court issued a Scheduling Order. setting a deadline to serve initial disclosures on or before October 25, 2016, complete discovery by The Court refers to Alston's claims by the numerical order in which they appeared in the AmClldexl Complaint. ECF No. 27. See ECF No. 50 11.5. .1 4 February 13.2017. and submit summary judgment motions by February 11.2017. ECF No. 62. Alston filed her Motion to Alter or Amcnd on October 21. 20 I6. ECF No. 67. and Trans Union tiled its Motion for Summary Judgment on Fcbruary 10.2017. ECF No. 71. II. STANDARD OF REVIEW Alston movcs to altcr or amend the August 26. 2016 Order rcgarding Count V pursuant to Fedcral Rule of Civil Proccdure 59(e). ECF No. 67. Trans Union moves for summary judgmcnt regarding Count III. Eel' No. 71-1. "A motion to alter or amcnd ajudgmcntmust bc tilcd no latcr than 28 days alicr thc cntry ofthc judgment," Fed. R. Civ. 1'. 59(c). Howcver. undcr Fcdcral Rulc ofCivill'roccdure 54(b), an ordcr that "adjudicatcs fewcr than all the claims ... docs not end the action as to any of the claims or partics and may be rcviscd at any timc beforc thc cntry of a judgment adjudicating allthc claims and all the parties' rights and liabilitics," Summary judgmcnt is proper whcn "a party ... tails to makc a showing sufticient to establish the cxistcncc of an element esscntialto that party's casc. and on which that party will bcar the burden of proof at trial." Ce/olex Corp. 1'. Ca'rel'. 477 U.S. 317. 322 (1986). Thc party moving for summary judgmcnt must "show[J that thcrc is no genuine disputc as to any material fact and thc movant is cntitlcd to judgmcnt as a mattcr of law," Fcd. R. Civ. 1'. 56(a). If thc moving party satisfies its burdcn. thc party opposing the motion "must comc forward with 'specific facts showing that thcre is a genuinc issuc lor trial. .,. Mal.l'lIsilila Elee. 'l1dllS, Co, \'. Zel1ilil Radio Corp .. 475 U.S. 574. 587 (1986) (citing Fcd. R, Civ. 1'. 56(a))."A complctc lailure of proof concerning an csscntial c1cmcnt of thc non-moving party's casc ncccssarily rcndcrs all othcr facts immaterial" and warrants summary judgmcnt. Cetolex CO/i' .. 477 U.S. at 323. 5 III. DISCUSSION A. Motion to Alter or Amend - Count V Alston alleges that the Court's August 26. 2016 Order "contains a clear error oflaw" with respect to Trans Union and Experian's duties under 15lJ.S.C. ~ 1681i(a) to provide information regarding Alston's December 29.2014 dispute to BB&T and resolve the alleged errors in her credit tile. ECT No. 67. Alston liled her Motion to Alter or Amend. ECF No. 67. on October 21. 2016-56 days alier this Court issued its August 26. 2016 Order. For the reasons that lollow. Alston's motion is thus time-barred. As an initial matter. the Court' s August 26. 2016 Order was not a Iinal judgment: therclore. Alston's motion is improperly styled as a motion to alter or amend under Rule 59(e). Rather. Alston's motion is a motion to reconsider. which. under Local Rule 105.10. must be tiled within lourteen days of the underlying Order. See Loc. R. 105.10 (D. Md. 2016) ("Iejxcept as otherwise provided in Fed. R. Civ. P. 50.52.59. or 60. any motion to reconsider any ordcr issued by the Court shall be tiled with the Clerk not later than fourteen (14) days alier entry of the order ..)5 The inability to lile a Rule 59(e) motion following an interlocutory order was clearly laid out by Judge Chuang in Leu'en \'. E\'peril/ll Inti! SO/lIliollS. Inc.. NO.8: 14-cv-03957 -TDC (D. Md. Aug. 1.2016)." Judge Chuang stated: Rulc 59(e) allows I()r motions to alter or amend a judgment. Rule 54(b) claritics that an order that "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action:' Instead. that order "may be revised at any time bcfore the entry of a judgment adjudicating all the claims and all the parties rights and liabilities:' Rule 54(a). in turn. defincs a "judgment" as "any order Irom which an appeal lies:' Under the plain language of Rule 54. then. an order that resolves some but not all claims in a case. or resolvcs the claims of some but not all parties. cannot be a Even if Alston's motion was proper under Rule 59(e). it was not filed within 28 days of the underlying Order and is still time barred. 5 (. This Order should be of no surprise to Alston because one of the Lerrell plaintiffs. Candice Alston (presumably Yvonne Alston's daughter) also lists her address of record as 10012 Cederhollow Lane. Largo. MD 20774. 6 "judgment'. because such an order is expressly one that the issuing court may revise "at any time" before the entry of judgment on all the claims in the case. 28 U.S.c. ~ 1291 (providing that federal eourts of appeals "shall have jurisdiction of appeals Irom all tinal dccisions ofthc district courts of the United States") (cmphasis added). Such an order becomes appealable-and thus can be considered a judgment within the meaning of Rule 54(a)-only if the court specilically "direct/s] entry of a linal judgment"" as to the particular claims resolved by the order and "expressly determines that there is no just reason f()r dclay" of the entry of judgment as to those claims. Fed. R. Civ. 1'. 54(b). Ifuggills \'. FedE\' Gl'oul1d I'lIckllg" ",).,1' .. IlIc .. 566 F.3d 771. 773 (8th Cir. 2009) (emphasizing that generally only "orders that dispose of all claims" are "Iinal and appealable" lar purposes of establishing appellate jurisdiction under 28 U.S.c. ~ 1291. but that an exception is made f()r orders expressly designated as linal by the procedure laid out in Rule 54(b». S"" S"" &" 1.<'11'''11. NO.8: 14-cv-03957-TDC at *3. Similar to 1."11'''11. this Court's August 26. 2016 Order. lOCI'No. 50. resolved some but not all of the claims and was not ripe lar appeal. The Court did not dismiss Counts I and III against BB&T and Trans Union. respectively. and invited Alston to amend her claim with regards to her November 4. 2015 credit dispute in Count V. Therefore. Alston cannot move to alter or amend that Order pursuant to Rule 59(e) because it was not a judgment as detined by Rule 54. Instead. "Alston's only procedural mechanism to seek reconsideration of that Order is Local Rule 105.10:' L"ll'ell. NO.8: 14-cv-03957 -TDC at *4. Per the local rule. Alston had laurteen days to seek reconsideration but I[tiled to do so. Alston has not provided an explanation lar her late liling or a response to defendants' opposition raising the issue of timclines. lOCI'Nos. 69. 70. S"" Amlll \'. Mid/lim/ CI'"dil ,l/glIIl. o(AIII .. No. I0-cv-885. 20 II WL 3821600. at *2 (D. Md. Aug. 26.2011) ("although pleadings prepared by pro se litigants arc to bc liberally construed. the same cannot be said Ii)r the interpretation of procedural rules in ordinary ci\'il litigation"). Alston's motion also included a Second Amended Complaint as an attachment. ECF No. 67-2. Though Alston does not mention these attachments in her substantive motion. ECF No. 7 67, the Court construes the attachmcnt and the motion is denied. as a motion for leavc to Iile a second amended complaint. Per this Court's days to amend her complaint. August 26, 2016 Order. Alston was granted fourteen See ECI' No. 50 at 207 Having failed to amend her complaint within the timeline given by the Court. Count V was dismissed No. 57. Alston's opportunity to amend her complaint B, Motion for Summary or follow reasonable for impermissible purposes. .Judgment - Count III procedures ECF No. 27 19. 20] 6. See ECF again has long since passed. In Count III. Alston alleges that Trans Union violated failed to establish on September 'i~ 59-65. 15 U.S.C. ~ 16&]e(a) because it to prevent the disclosure The Court previously of credit information set forth the standard for a claim under ~ 1681 e(a) as lollows: In order to state a elaim for violation of the "reasonable procedures" requirement of ~ 168Ie(a). "'a plaintiff ... must lirst show that the reporting agency released the report in violation 01'* 16&lb.'" Harris \'. Dalahase M~lIIt. & Mktg. IlIc.. 609 F. Supp. 2d 509. 517 (D. Md. 2009) (quoting Washill~toll \'. CSC Credit Sen's. IlIc .. 199 F.3d 263. 267 (5th Cir. 2000». "[IJfthe [CRAJ has reason to believe that the user had a permissible purpose in obtaining the [consumer] report. there is no FCRA violation." Id. at 515 (citation and internal quotation marks omitted). A CRA generally has "reason to believe" that a consumer report is being accessed lor a permissible purpose "when the subscriber had certilied such limited usage. the primary purpose of the subscriber's business involved accessing reports lor a permissible purpose. and the agency was unaware of any impermissible usc by the subscriber:' Id l3ut ..[tjhe fact that a consumer report is furnished fiJI' an impermissible purpose ... does not result in automatic liability. Liahility is imposed only when the [CRAJ either willfully or negligently ftlils to maintain reasonable procedures to avoid violations of ... 1681 h:' I'ietra/csa \'. First ..1111. Real Estate II?/il. Sen's .. IlIc.. No. J:05-CV-1450, 2007 WI. 710197. at *3 (N.D.N.Y. Mar. 6. 2007) (quoting !Johsoll \'. Hol/OIl'ay, 82& F.Supp. 975. 977 (M.D. Ga. 1993». * ECF No. 50 at 15-16. Alston alleges that Midland obtained impermissible consumer report from Trans Union Illr an purpose on August 22. 2014. Trans Unioll knew that Midland otien obtains reports lor impcnnissihle Pin cites to documents by that systelll. 7 her consumer purposes. and Trans Union has not estahlished procedures to filed on the Court's electronic tiling system (CM/ECF) refer to the page numbers generated verify if Midland had a permissible purpose. ECF No. 27 '130. In denying Trans Union's motion for judgment on the pleadings. ECF No. 44. the Court stated that the faels alleged by Alston support an inference that 1) Midland obtained her report in violation of the FCRA and 2) Trans Union's requirement that Midland certify it was obtaining the report for a proper purpose. alone. was insufficient to establish that Trans Union maintained reasonable procedures to protect against such activity. See ECF No. 50 at 16-17 (construing facts in thc light most favorable to Alston). Trans Union now argucs that Alston. having wholly failed to li)llow the Court"s Discovery Order. ECF No. 62. has. as a matter of law. admitted that Trans Union did not violate 15 U.S.c. * 1681eta). Trans Union states that it served Alston with its First Set of Interrogatories. First Set of Rcquests for Production of Documents. and First Set of Requests fi)r Admission (Discovery Rcquests) on Octobcr 24. 2016. See Dcclaration of Justin T. Walton. Esq .. ECF No. 71-5 ~ 2. Howevcr. Alston has refuscd to serve her initial disclosures. respond to Trans Union's Discovery Requcsts. icl. 'I~ 6. 7. or provide input for the partics' Joint Status Rcport. See ECF No. 73 at n.l. Because Alston elected not to participatc in discovcry. the Court dccms thc tacts presented by Trans Union in its Requests for Admission to be admitted. See Fed. Civ. P. R. 36(a)(3) C'[ajmattcr is admitted unless. within 30 days alicr being servcd. the party to whom thc request is directed serves on thc requcsting party a written answcr or objections"); see a/so LYI/I/ \'. MOl/arch Recore,:,' Mgll1/ .• 285 F.R.D. 350.363 (D. Md. 2012) ("'A matter is deemed admitted if the responding party fails to timely providc a written answer or objection to the request for admission"'). By not responding to Trans Union's Rcquest for Admission. Alston conccdes that Trans Union never furnished inaccuratc infimnation about her in a credit report to a third party. 9 ECF No. 71-9 at 8, followed reasonable procedures designed to limit the furnishing of consumer reports for permissible purposes, ill. at 11. did not furnish her consumer report to any person it had reasonable grounds to believe would not use the consumer report flJr a permissible purpose. including Midland, id at 12, and that she was not damaged as a result of any act or omission on the part of Trans Union, id at 8. Following these admissions, Alston cannot show that Trans Union released her consumer report in violation of ~ 1681b-a prerequisite in order to statc a claim for violation of the "reasonable procedures" requirement of ~ 1681eta). Thus, summary judgment in favor of Trans Union is appropriate. Dono\"(/n \".Porrer, 584 F. Supp. 202, 207-08 (D. Md. 1984) ("It is c1car that unanswered requests for admissions may properly serve as a basis fiJI' summary judgment and with a failure to make a timely response, the truth of the matter contained in the request for admission is conclusivcly establishcd and may serve as the basis for the court's consideration ofa motion lor summary judgment."). Even without these admissions, Alston's claim rests only on the allegations in her Amended Complaint. ECF No. 27, and she points to no evidence supporting her claim in her bare-bones opposition to Defendant's Motion lor Summary Judgment. See Williallls ". 0./S Secure Sols. (USA). Inc.. No. 10-3476.2012 U.S. Dist. LEXIS 66249. at *24 (D. Md. May 11. 2012) (quoting Bouchar ". Balr. Rm'ens Foorball Club. Inc., 346 F.3d 514. 522 (4th Cir. 2003) (a "party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [her] pleadings. but instead must set lorth specific filcts showing that there is a dispute of material facts") (internal quotations omitted). In opposition. Alston does not explain her complete failure to participate in discovery and instead argues that Trans Union's motion should be denied because Trans Union failed to comply with Local Rule I05.2(c). Local Rule 105.2(c) provides: 10 In a two-party case. ifboth parties intcnd to lile summary judgment motions. counscl arc to agrcc among themselves which party is to tilc thc initial motion. Alier that motion has been tilcd. thc othcr party shall lile a cross-motion accompanicd by a singlc mcmorandum (both opposing thc lirst party's motion and in support of its own crossmotion). the lirst party shall thcn lile an opposition/rcply. and the sccond party may thcn tile a reply. Ifmorc than two (2) parties intcnd to lilc motions in a multi-party case. counsel shall submit a proposcd bricling schcdule whcn submitting their status rcport. See Loc. R. 105.2(c) (D. Md. 2016). Alston statcs that Local Rulc 105.2(c) is "c1carly dcsigncd to facilitate thc Court's cflicicnt administration of justice. and thus should not bc ignorcd. Trans Union. however. has chosen to disregard both the Local Rule and Scheduling Ordcr. as it did not contact PlaintitTprior to tiling its Motion:' ECF No. 74 at 1-2. Alston further allegcs that had Trans Union notiticd hcr about its intcnt to submit a motion for summary judgmcnt. shc would havc filed hcr own motion.' /d. at 2. Alston's argument 11111s dcaf ears. Ilaving not on participatcd in discovcry. Alston has no cvidencc that would support her liling a motion for summary judgment. and Trans Union was not obligatcd to proactively scck hcr conscnt on a proposed bricting schedule beforc submitting its own motion I()r summary judgment." See LUjJo \'. JI';\/orgal1 Chase Balik. N.A .. No. 14-cv-475. 2015 U.S. Dist. LEXIS 130869. at *39 (D. Md. Sept. 28. 2015) (rcjccting plaintiffs argumcnt that dcfcndant's dispositivc motion should bc dismissed lor failurc to comply with thc Local Rule bccause plaintilTdid not signal its intcntion to movc lor summary judgmcnt). Trans Union's motion was liled within thc timethune establishcd by thc Court. It Alston erroneously states that .'the Court"s Scheduling Order states '[i]fmore than one part::.'intends to tile a summary judgment Illotion. the provisions of Local Rule I 05.2c apply. "" ECF No. 74 at I. While the local rules certainly apply to proceedings before this Court. no such statement exists in this Court's Scheduling Order. ECF No. 62. The Court does not know if Alston included this quotation to intentionally mislead the Court or if the statement was copied from a similar motion in the litany of other FCRA casesbrought by the Alston family. See A/s(on \'. EXI'erian !I~rormafi()nSo/u(ilms, /11('. e( £1/., No. PJM-1 )-3558,2016 WL 4555056. at * 14 n.5 (D. Md. Aug. 31. 2016) (listing 36 other FCRA CiJses brought by Alston-family plaintiffs against eRAs or other financial institutions). Even so. Alston allegedly informed Trans Union that she did not even intend to oppose the Motioll. Set! Declaration of Justin T. Waiton. Esq .. Eel' No. 75-1 ~6. 'J II IV. CONCLUSION For the foregoing reasons. Plaintitrs Motion to Alter or Amend the Judgment. ECF No. 67. is denied. Defendant Trans Union's Motion for Summary Judgment, ECF NO.7!. is granted. A separate Order follows.IO Dated: September 15, 2017 GEORGE J. HAZEL United States District Judge J(l Trans Union suggests that Alslon's refusal to dismiss this case and participate in discovery forced Trans Union to incur needless costs and expenses to pursue its motion for summary judgment and associated reply brief. ECF No. 75 at 8. The FCRA allows the Court to award attorneys' fees to the prevailing party upon a filing made in bad faith or for lhe purposes of harass men I. 15 U.s.c. 1681n(e) and 1681o(b). but Trans Union has not requested such relief. Trans Union may request this Court to award attorneys' fees ifit chooses to do so. ** 12

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