Alston v. Branch Banking & Trust Company et al
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 9/15/2017. (kns, Deputy Clerk)(c/m 9/15/17)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
lO/1 SfP /5 .:. ii: 31
YVONNE R. ALSTON,
BRANCH BANKING & TRUST
COM I' ANY, et aI.,
~ J 681 el self .. the Maryland
("1313&1""). Equitax Information
No. 27.' Alston moves to alter or amend this Court's
Trans Union. LLC ("Trans
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.
Md. Code Ann .. Com. Law ~ 13-101 el self. against
Union"). and Midland Credit Management.
of the Fair
Md. Code Ann .. Com. Law ~ 14-201 el self .. and the Maryland
Branch Banking and Trust Company
~ 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.
narrowed the claims and defendants. 5;('(' ECF Nos. 50. 57 68. and 76.
Motion to Alter or Amend is denied. and Trans Union's
Motion lilr Summary
A. Factual Background
stems li.OI11 initial dispute with I3I3&T whereby Alston. on May 31.
2014. requested a payoff statement
'i 10. On .June 4. 2014. BB&T
notice of transfer of servicing.
sent in that correspondence
"was not certilied
holder of the Note and. therefore.
loan on her primary
sent Alston a payoff statement.
and a copy of the Note. Id. ~ 12. According
rounds of correspondence.
2014. Alston demanded
o. 27 ~~ 8.9. BB&T acquired the loan in .June 2013 li.om Virginia
Bank. ECF No. 27
Irom BB&T for the mortgage
to Alston. the Note
as a true and accurate copy:'
Alston stated that BB&T tailed to verify that it was the
should have ceased assessing
that BB&T apply her mortgage
Alston with a payolT statement
interest on her loan aner .June
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").
and Trans Union. in which she stated that the balance on her mortgage
to Alston. rather than a balance 01'$131.809. her report should have shown
a balance 01'$129.463.40 to rellect application
2014 to her principal balance only. /d. ~ 22. On .January 4. 2015. BB&T
a portion of her monthly
to her principal
of her .June 2014 through December
balancc only. lei. ~ 24. Alston asked that the CRAs
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
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.
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
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
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.
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:
Dismissed in part Alston's 15 U.S.c. ~ 168Is-2(b) claim against BB&T
Denied Trans Union's Motion for Judgment on the Pleadings regarding
Alston's ~ 168Ie(a) Claim Against Trans Union (Count Ill):
Dismissed Alston's ~ 1681i(a)(6)(B)(ii) claim against Experian (Count 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
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.
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.
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
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.
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.
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.
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.
(. 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.
"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
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».
&" 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.
\'. 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
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.
67, the Court construes
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
to amend her complaint
B, Motion for Summary
or follow reasonable
.Judgment - Count III
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
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.
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
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.
and Trans Union has not estahlished
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
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
* 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.
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.
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
\'. 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.
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:
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
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.
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
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.
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