Flood v. Equifax Information Services, LLC et al

Filing 31

OPINION and ORDER Denying Plaintiff's 23 Motion for Summary Judgment; and Granting Defendant National Credit System, Inc's 24 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN FLOOD,
Plaintiff,
Civil Case No. 13-11813
Honorable Linda V. Parker

v.
EQUIFAX INFORMATION
SERVICES, LLC, and
NATIONAL CREDIT SYSTEMS, INC.,

Defendants.
_____________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 23] AND GRANTING DEFENDANT
NATIONAL CREDIT SYSTEM, INC.’S MOTION FOR SUMMARY
JUDGMENT [ECF NO. 24]
On April 23, 2013, Plaintiff John Flood (“Plaintiff”) initiated this lawsuit
against Defendants Equifax Information Services, LLC (“Equifax”) and National
Credit Systems, Inc. (“NCS”) alleging negligent and willful violations of the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681-1681x. The matter initially
was assigned to the Honorable Lawrence P. Zatkoff. By stipulation, Plaintiff’s
claims against Equifax were dismissed on August 15, 2013, and Equifax was
dismissed from this lawsuit. Plaintiff and NCS filed cross-motions for summary
judgment pursuant to Federal Rule of Civil Procedure 56 on February 17 and 18,
2014, respectively. (ECF Nos. 23, 24.) The motions have been fully briefed. On

May 28, 2014, Judge Zatkoff reassigned the matter to the undersigned pursuant to
Administrative Order 14-AO-030. On August 25, 2014, this Court issued a notice
informing the parties that it is dispensing with oral argument with respect to the
parties’ motions pursuant to Eastern District of Michigan Local Rule 7.1(e). (ECF
No. 30.) For the reasons that follow, the Court now denies summary judgment to
Plaintiff and grants summary judgment to NCS.
I.

Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is

appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P.
56(a). The central inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56
mandates summary judgment against a party who fails to establish the existence of
an element essential to that party’s case and on which that party bears the burden
of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Id. at 323. Once the movant meets this burden, the
2

“nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To
demonstrate a genuine issue, the nonmoving party must present sufficient evidence
upon which a jury could reasonably find for that party; a “scintilla of evidence” is
insufficient. See Liberty Lobby, 477 U.S. at 252.
“A party asserting that a fact cannot be or is genuinely disputed” must
designate specifically the materials in the record supporting the assertion,
“including depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence
and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby,
477 U.S. at 255.
Courts evaluate cross-motions for summary judgment under the same
standard. La Quinta Corp. v. Heartland Props., LLC, 603 F.3d 327, 335 (6th Cir.
2010) (citing Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004)). When
faced with cross-motions for summary judgment, each motion is examined on its
own merits. Id.

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II.

Factual and Procedural Background
The facts relevant to this matter are generally not in dispute. On or about

December 13, 2010, Eagles Landing of Washington Apartments (“Eagles
Landing”) placed a past due account for amounts owed by a tenant, John Flood,
with NCS for collection. (Def.’s Mot., Ex. A at 11.) Eagles Landing forwarded to
NSC details regarding the amount it claimed was due and owing ($5,408.00) by
“John Flood” with a last known address of 60520 Campground, Apt. #3,
Washington Township, MI 48094. (Id. at 16; Ex. B at 12/22/2010 Notes.)
NCS mailed correspondence to John Flood’s last known address, but the
mailing was returned to NCS as undeliverable. (Id., Ex. B at 12/23/2010 Notes.)
NCS obtained an updated address of 60786 Hayes Road, Ray, MI 48096, but
correspondence subsequently sent to this address also was returned to NCS for
unknown reasons. (Id.)
On May 11, 2012, Plaintiff’s wife, Kim Flood (“Mrs. Flood”), contacted
NCS for the first time. She advised NCS’ representative that the amount NCS was
trying to collect belonged to her son, John Flood, but was being reported on the
credit report of her husband, John Flood (i.e., Plaintiff). (Id. at 5/11/2012 Note;
Ex. A at 18, 22.) NCS’ representative asked Mrs. Flood to fax NCS documentation
showing that the debt did not belong to Plaintiff. (Pl.’s Mot., Ex. B ¶ 9.) At the
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conclusion of Mrs. Flood’s call, NCS’ representative marked the account as
disputed for credit bureau records and an account investigation was immediately
commenced. (Def.’s Mot., Ex. A at 18-19, 22.) NCS’ representative, Lee
Wheeler, then called Eagles Landing to report Plaintiff’s dispute and to request
additional documentation regarding the person listed on the debt. (Id.; Ex. B at
5/11/2012 Note.)
On May 17, 2012, a representative of Eagles Landing named Bridget
advised NCS that the John Flood that owed the debt had a date of birth of 1990.
(Id. Ex. B at 5/17/2012 Note.) Bridget agreed to fax supporting documentation to
NCS verifying the debtor’s social security number and date of birth so NCS could
update the account. (Id.) In the meantime, Mrs. Flood faxed NCS a copy of
Plaintiff’s driver’s license so NCS could compare his date of birth with her son’s
date of birth. (Pl.’s Mot., Ex. B ¶ 10.)
After receiving the documentation from Eagles Landing, NCS updated the
account and all corresponding credit reporting to reflect the correct social security
number and date of birth for the individual owing the debt. (Def.’s Mot., Ex. B at
5/30/2012 Note; Ex. A at 24.) This was an internal update and the updated
information also was provided to the consumer reporting agencies. (Id.) NCS
heard nothing else regarding Plaintiff until the following year. (Id. Ex. B.)
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On or about March 25, 2013, Mrs. Flood called NCS to advise that the debt
to Eagles Landing was appearing again on Plaintiff’s Equifax Information Services
LLC (“Equifax”) credit report. (Id. at 3/25/2013 Note.) NCS’ representative
confirmed that NCS’ account notes contained the correct social security number
and date of birth for Plaintiff’s son– not Plaintiff– and that NCS already had
reported the correct information to the consumer reporting agencies and requested
that the information be deleted from Plaintiff’s credit report. (Id.; Ex. A at 26-27.)
NCS’ representative advised Mrs. Flood to submit a dispute with Equifax directly.
(Id., Ex. B at 3/25/2013 Note.)
On or about April 2, 2013, NCS received an automated credit dispute
verification (“ACDV”) form generated when Mrs. Flood lodged her complaint
with Equifax. (Def.’s Mot., Ex. C.) NCS responded that the social security
number listed on the form was “different” than the social security number in NCS’
records but indicated, although incorrectly, that the date of birth supplied on the
form was the “same.” (Id.) Plaintiff filed this lawsuit several weeks later.
In his Complaint, Plaintiff alleges that NCS negligently (Count I) and
willfully (Count II) violated the FCRA, 15 U.S.C. § 1681s-2(b). (Compl. ¶¶ 1829.) He claims that he “suffered damages, mental anguish, suffering, humiliation
and embarrassment” as a result of NCS’ violations. (Id. ¶¶ 22, 28.) Plaintiff seeks
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recovery of those damages and the costs and attorneys’ fees incurred in bringing
this lawsuit for NCS’ alleged negligent violation of the statute. (Id. ¶ 23.) He also
seeks statutory and punitive damages for NCS’ willful violation. (Id. ¶¶ 28-29.)
Plaintiff filed his pending summary judgment motion on February 17, 2014,
claiming that there is no genuine issue of material fact with respect to whether
NCS falsely validated that he and the person owing the debt share the same date of
birth, despite knowing that this was not correct. (ECF No. 23.) Plaintiff argues
that NCS’ conduct constitutes a willful violation of the statute or, at least, a
negligent violation. In his motion and his affidavit submitted in support of the
motion, Plaintiff does not identify any damages suffered as a result of NCS’
conduct. (See id., Ex. A.)
In response to Plaintiff’s motion (ECF No. 25) and in its cross-motion for
summary judgment (ECF No. 24), NCS argues that the evidence reflects nothing
more than a “clerical error” rather than a knowing, intentional, or reckless
disregard of its duties under the FCRA. NCS contends that it therefore is entitled
to summary judgment on Plaintiff’s claim alleging a willful violation of the statute.
NCS argues that it also is entitled to summary judgment with respect to Plaintiff’s
claim alleging a negligent violation of the statute because Plaintiff fails to provide
proof of actual damages suffered as a result of the alleged violation. NCS argues
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that Plaintiff’s vague assertions in response to interrogatories that he sustained
“emotional suffering” (see Def.’s Mot., Ex. D.) are insufficient to prove his claim
for emotional damages. NCS notes that Plaintiff identifies no witnesses or
documents to corroborate his actual damages claims. (Id.)
In his response to NCS’ motion, Plaintiff contends that NCS willfully or
recklessly failed to comply with the FCRA’s provisions when it validated that
Plaintiff and the debtor share the same date of birth but knew this was false. With
respect to damages, Plaintiff asserts in his response brief that he attempted to
refinance his home mortgage with Charter One Bank in November 2012 and,
although Charter One Bank verbally approved his application, he was later told
that he did not qualify for a better interest rate because of a problem with his credit
report. (Pl.’s Resp. Br. at 11.) Plaintiff claims that the only negative item on his
credit report was the trade line reported by NCS. (Id.) Plaintiff also asserts that he
suffered emotional harm as a result of NCS’ violation.
III.

Applicable Law
Plaintiff alleges that NCS violated § 1681s-2 of the FCRA. This section

requires furnishers of credit information to report accurate information to consumer
reporting agencies regarding a consumer’s credit. 15 U.S.C. § 1681s-2(a)(1)(A).
It further sets forth a furnisher’s responsibilities upon receiving notice from a
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credit reporting agency that a consumer disputes the information a furnisher has
provided:
(A) conduct an investigation with respect to the disputed information;
(B) review all relevant information provided by the consumer
reporting agency pursuant to section 1681i(a)(2) of this title;
(C) report the results of the investigation to the consumer reporting
agency;
(D) if the investigation finds that the information is incomplete or
inaccurate, report those results to all other consumer reporting
agencies to which the person furnished the information and that
compile and maintain files on consumers on a nationwide basis; and
(E) if an item of information disputed by a consumer is found to be
inaccurate or incomplete or cannot be verified after any
reinvestigation under paragraph (1), for purposes of reporting to a
consumer reporting agency only, as appropriate, based on the results
of the reinvestigation promptly–
(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of
information.
15 U.S.C. § 1681s-2(b)(1)(A)-(D).
Although subsection (a) requires a furnisher to provide correct and accurate
information to consumer reporting agencies, there is no private right of action to
enforce the prohibition on knowingly furnishing inaccurate information. See 15
9

U.S.C. § 1681s–2(c), (d); see also Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 34
(3d Cir. 2011); Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1059
(9th Cir. 2002); see also Bach v. First Union Nat’l Bank, 149 F. App’x 354, 35859 (6th Cir. 2005). Where a furnisher negligently violates subsection (b), a
consumer may sue but can prevail only if he or she suffered actual damages as a
result of the violation. 15 U.S.C. § 1681o; see also Kaplan v. Experian, Inc., No.
09-10047, 2010 WL 2163824, at *3 (E.D. Mich. May 26, 2010) (unpublished)
(“under § 1681o, proof of actual damages is an essential element of a negligence
claim”) (citing Hyde v. Hibernia Nat’l Bank, 861 F.2d 446, 448 (5th Cir. 1998);
Matise v. Trans Union Corp., No. 3:96-cv-3353, 1998 WL 872511 (N.D. Tex.
1998); Beaudry v. Telecheck Servs., Inc., 579 F.3d 702, 708 (6th Cir. 2009)). The
plaintiff must show that the defendant’s violation of the statute “caused the loss of
credit or some other harm.” Bach v. First Union Nat’l Bank, 149 F. App’x 354,
360-61 (6th Cir. 2005) (emphasis added) (citing Crabill v. Trans Union, LLC, 259
F.3d 662, 664 (7th Cir. 2001)).
Proof of actual damages is not necessary where the Plaintiff can establish a
willful violation of the FCRA. Under the statute, statutory and punitive damages,
as well as reasonable attorney fees and costs, are recoverable where the Defendant
committed a willful violation. 15 U.S.C. § 1681n. In Safeco Insurance Co. of
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America v. Burr, 551 U.S. 47 (2007), the United States Supreme Court held that a
“willful” violation of the FCRA is either an intentional violation or a violation
committed in reckless disregard of the duties imposed under the statute. Id. at 52,
56-57. The Court adopted the common law understanding of “the term
recklessness . . . as conduct violating an objective standard: action entailing ‘an
unjustifiably high risk of harm that is either known or so obvious that it should be
known.’ ” Id. at 68 (quoting Farmer v. Brennan, 511 U.S. 825, 836 (1994)).
IV.

Analysis
A.

Plaintiff’s Willful Violation Claim

Plaintiff presents no evidence from which a reasonable jury could conclude
that NCS acted knowingly or in reckless disregard of its duties under the FCRA, as
opposed to carelessly or accidentally, when it confirmed on or about April 2, 2013,
that the date of birth of Plaintiff and the debtor were the same. As NCS points out,
when Mrs. Flood first reported the incorrect inclusion of the debt on her husband’s
credit report, it promptly complied with its obligations under the FCRA: NCS
marked the account as disputed, investigated the veracity of the disputed
information, reviewed the information provided by Mrs. Flood and Eagles
Landing, reported the results to the consumer reporting agencies, and corrected the
error in its records. Despite its efforts and for unknown reasons, the debt again
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appeared on Plaintiff’s Equifax credit report in early 2013. When this was brought
to NCS’ attention by Mrs. Flood, NCS reviewed the information it had and
confirmed that the correct social security number and date of birth for the debtor
were recorded and that a deletion request had already been made. NCS also
advised Mrs. Flood to file a dispute directly with Equifax. Such conduct does not
reflect a knowing or reckless disregard of NCS’ obligations under the FCRA.
The facts of this case are distinguishable from those that this Court reviewed
where the evidence was found to support a willful violation of the FCRA. See,
Saunders v. Branch Banking & Trust Co. Of Virginia, 526 F.3d 142 (4th Cir. 2008)
(finding evidence of a willful violation where the furnisher intended not to report
the plaintiff’s dispute of his account, despite the furnisher’s records reflecting the
ongoing dispute); Van Veen v. Equifax Info., 844 F. Supp. 2d 599, 610 (E.D. Pa.
2012) (finding an issue of fact as to whether the defendant willfully violated the
FCRA where the plaintiff “introduced evidence that [the d]efendant’s investigative
procedures never permit deletion of accounts, always result in verifying the
disputed account as ‘charged-off,’ and never result in marking an account as
disputed[]” and where the defendant’s analysts were allotted five to ten minutes for
investigations of disputes); see also Akalwadi v. Risk Mgmt. Alt., Inc., 336 F. Supp.
2d 492, 511 (D. Md. 2004) (finding a genuine issue of material fact with respect to
12

whether the furnisher willfully violated the FCRA where there was no evidence of
what, if anything, the furnisher did to investigate the plaintiff’s dispute). Although
Plaintiff cites several cases in the section of his briefs discussing “willful”
violations of the FCRA, in none of those cases did the court find evidence of
willful conduct (and in fact, most of the cases do not even address whether the
defendant’s conduct was willful). See Goodby v. Wells Fargo Bank, NA, 599 F.
Supp. 2d 934, 944 (S.D. Ohio 2008) (concluding that “[w]hile conducting an
account review of [the p]laintiff’s credit information is a violation under a
reasonable reading of the FCRA’s terms, there is nothing in the record which
shows that [the d]efendant ran a risk of violating the law substantially greater than
the risk associated with a reading that was merely careless”); Alston v. Wells Fargo
Bank, NA, No. 8:12-cv-03671, 2013 U.S. Dist. LEXIS 119172 (S.D. Md. Aug. 22,
2013) (unpublished) (Pl.’s Mot., Ex. M) (setting forth furnisher’s duties when
notified of a dispute, but not finding a violation of those duties by the defendant,
much less a willful violation); Ausar-El v. Barclay Bank Del., No. 12-0082, 2012
U.S. Dist. LEXIS 106572 (D. Md. July 31, 2012) (unpublished) (finding that the
plaintiff failed to allege facts sufficient to show that the defendant did not comply
with its duties under § 1681s-2(b), but declining to grant the defendant’s motion to
dismiss because the plaintiff “may yet be able to do so”); Edwards v. Equable
13

Ascent, FNCL, LLC, 11-cv-2638, 2012 U.S. Dist. LEXIS 54112 (D.N.J. Apr. 16,
2012) (unpublished) (Pl.’s Mot., Ex. N.) (granting the defendant’s motion to
dismiss the plaintiff’s action under the FCRA where the plaintiff failed to allege
that he notified a consumer agency of disputed information); Markovskaya v. Am.
Home Mortg. Servicing, Inc., 867 F. Supp. 2d 340 (E.D.N.Y. 2012) (granting
summary judgment to the defendant-furnisher on the plaintiff’s FCRA claim where
there was no evidence that a credit reporting agency reported the plaintiff’s dispute
to the defendant-furnisher); Mazza v. Verizon Washington, DC, Inc., 852 F. Supp.
2d 28 (D.D.C. 2012) (finding sufficient allegations in the plaintiff’s complaint to
state a violation of the FCRA, but not addressing willfulness issue).
For these reasons, the Court concludes that the evidence does not show
NCS’ willful violation of the FCRA. Plaintiff therefore is not entitled to judgment
as a matter of law on Count I of his Complaint. NCS, however, is entitled to
summary judgment with respect to this claim.
B.

Plaintiff’s Negligent Violation Claim

As stated, Plaintiff can prevail on his claim alleging that NCS negligently
violated § 1681s-2(b) only if he presents evidence of actual damages resulting from
the violation. As previously set forth, Plaintiff asserts in response to NCS’ motion
that NCS’ violation of the FCRA caused him emotional harm and damaged his
14

ability to get a better interest rate when he attempted to refinance his home
mortgage in November 2012.
Plaintiff presents only his affidavit in support of these asserted damages.
With respect to his alleged emotional harm, Plaintiff states: “As a result of
National Credit Systems, Inc.’s reporting of the trade line concerning Eagle
Landing of Washington on my Equifax credit report I suffered anger and
frustration, as well as being insulted and inconvenienced.” (Pl.’s Resp., Ex. A
¶ 15.) In support of the alleged injury to his ability to refinance his home
mortgage, Plaintiff states:
12.

In November of 2012, I attempted to refinance my home
mortgage with Charter One Bank.

13.

Although Charter One Bank verbally approved the refinance, I
was later told that I did not qualify for a better interest rate
because of a problem with my credit report.

14.

The only negative item on my credit report has been the trade
line reported by National Credit Systems, Inc.

(Id. ¶¶ 12-14.) To support the assertion in paragraph fourteen of his affidavit,
Plaintiff attaches two pages of his purported credit report to his response brief.1

1

There is no information on Plaintiff’s Exhibit “K” to indicate that it is a
credit report, that it is Plaintiff’s credit report, or that the debt listed is the only
account in collection listed on the credit report. Further, the only date on the
exhibit is a fax date of April 12, 2013. Therefore, even if it is Plaintiff’s credit
(continued...)
15

(Pl.’s Resp., Ex. K.)
Actual damages for a violation of the FCRA may include mental distress
damages. Bach, 149 F. App’x at 361 (citing Casella v. Equifax Credit Info. Servs.,
56 F.3d 469, 474 (2d Cir. 1995)). Plaintiff, however, presents insufficient
evidence in support of his motion and in response to NCS’ motion to show that he
suffered such damages.
Courts in this Circuit and elsewhere have imposed a strict standard of proof
for the recovery of emotional damages “ ‘because they are so easy to manufacture.’
” Sarver v. Experian Info. Solutions, 390 F.3d 969, 971 (7th Cir. 2004) (quoting
Aiello v. Providian Fin. Corp., 239 F.3d 876, 880 (7th Cir. 2001)); see also
Kaplan, 2010 WL 2163824, at *5 (quoting Sarver); Tallon v. Lloyd & McDaniel,
497 F. Supp.2d 847, 850 (W.D. Ky. 2007) (same); Garrett v. Trans Union, LLC,
No. 2:04-cv-00582, 2006 WL 2850499, at *11 (S.D. Ohio 2006) (unpublished)
(same). Pursuant to this standard:
[W]here the plaintiff’s own testimony is his only evidence of
emotional damages, he must explain the circumstances of his injury in
reasonable detail and not rely on conclusory statements, unless the
facts underlying the case are so inherently degrading that it would be
reasonable to infer that a person would suffer emotional distress from

1

(...continued)

report, it proves nothing as to what Plaintiff’s credit report reflected in November
2012.
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the defendant’s action.
Rohn v. Commercial Recovery Sys., Inc., No. 13-cv-10780, 2013 WL 6195578, at
*3 (E.D. Mich. Nov. 26, 2013) (Murphy, J.) (unpublished) (internal quotation
marks and citations omitted); see also Wantz v. Experian Info. Solutions, 386 F.3d
829, 834 (7th Cir. 2004), abrogated on other grounds by Safeco Ins. Co., 551 U.S.
47; McIntosh v. Check Resolution Serv., Inc., No. 10-14895, 2011 WL 1595150, at
*4 (E.D. Mich. Apr. 27, 2011) (Duggan, J.) (unpublished); Harding v. Check
Processing, LLC, No. 10-2359, 2011 WL 1097642, at *2 (N.D. Ohio Mar. 22,
2013) (unpublished). The Sixth Circuit likewise has stated that “[a]n injured
person’s testimony alone may suffice to establish damages for emotional distress
provided that [the person] reasonably and sufficiently explains the circumstances
surrounding the injury and does not rely on mere conclusory statements.” Bach,
149 F. App’x at 361 (citing United States v. Balistrieri, 981 F.2d 916, 931-32 (7th
Cir. 1992)). Further, when discussing whether emotional distress damages are
recoverable under the Fair Credit Billing Act, the Sixth Circuit noted the Second
Circuit’s decision in Casella with respect to the FCRA and held that such damages
are available only “in extreme cases.” Butler v. Sterling, Inc., No. No. 98-3223,
2000 WL 353502, at *8 (6th Cir. 2000) (emphasis added) (unpublished) (citing
Casella, 56 F.3d at 474).
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Plaintiff’s statements in his affidavit in support of his request for emotional
distress damages are merely conclusory. Further, this matter does not involve
“extreme” circumstances or facts where emotional distress reasonably could be
expected as a result of the defendant’s conduct. Thus Plaintiff fails to present
sufficient evidence in his motion and in response to NCS’ motion to support his
claim for emotional distress damages.
Plaintiff also fails to show that NCS’ violation of the FCRA damaged his
ability to refinance his mortgage. NCS correctly argues that Plaintiff improperly
uses his affidavit to claim, for the first time, damages never revealed in discovery.
A party cannot submit an affidavit that contradicts the parties’ earlier sworn
testimony in order to create a genuine issue of fact sufficient to survive summary
judgment unless the party explains the contradiction or resolves the disparity.
Aerel, S.R.L. v. PCC Airfoils, LLC, 448 F.3d 899, 906-908 (6th Cir. 2006) (quoting
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)). However, even
if the rule did not apply here, this asserted claim of damages to Plaintiff’s
refinancing opportunity claim fails for reasons not identified by NCS.
First, Plaintiff’s proof is based on inadmissible hearsay. Generally, the rule
is that “evidence submitted in opposition to a motion for summary judgment must
be admissible. Hearsay evidence . . . must be disregarded.” Alpert v. United States,
18

481 F.3d 404, 409 (6th Cir. 2007) (citing U.S. Structures, Inc. v. J.P. Structures,
Inc., 130 F.3d 1185, 1189 (6th Cir.1997)). Plaintiff’s statements as to what he was
told by Charter One Bank is being offered for the truth of the matter asserted.2 The
Supreme Court has held that a party opposing a summary judgment motion need
not “produce evidence in a form that would be admissible at trial in order to avoid
summary judgment.” Celotex Corp., 477 U.S. at 324) (“Rule 56(e) permits a proper
summary judgment motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings themselves, and it is from
this list that one would normally expect the nonmoving party to make the showing
to which we have referred.”). When a party proffers inadmissible evidence in
opposition to a summary judgment motion, however, the party “must show that
[he] can make good on the promise of the pleadings by laying out enough evidence
that will be admissible at trial to demonstrate that a genuine issue on a material fact
exists, and that a trial is necessary.” Alexander v. CareSource, 576 F.3d 551, 558
(6th Cir. 2009) (emphasis in original) (citation omitted). Plaintiff offers nothing to
suggest that he can produce admissible evidence to support the assertions in his
affidavit. Notably, he did not identify the Charter One Bank refinancing
application in response to NCS’ discovery requests concerning applications for

2

The statements would not support his claim of damages were they not true.
19

credit or financing made during the last five years or where asked to identify the
actual damages suffered and he has not listed any representative from Charter One
Bank on his witness list. (See Def.’s Mot., Ex. D [Pl.’s Discovery Responses];
ECF No. 21 [Pl.’s Witness List].)
Second, even if Plaintiff presented admissible proof regarding his attempt to
refinance his mortgage, he cannot show that this alleged harm resulted from NCS’
violation of the FCRA. According to Plaintiff, he attempted to refinance his
mortgage through Charter One Bank in November 2012. It was only in April
2013, however, that NCS inaccurately confirmed that Plaintiff’s and the debtor’s
date of birth were the same in response to the ACDV (the alleged violation). There
is no evidence that NCS committed some other violation of the FCRA prior to
November 2012 that resulted in Plaintiff’s alleged harm.3
For the above reasons, the Court concludes that the evidence submitted fails
to show that Plaintiff suffered actual damages as a result of NCS’ alleged violation
of the FCRA. As such, his claim alleging a negligent violation of the statute is
subject to dismissal as a matter of law.
V.

Conclusion

3

NCS may have reported inaccurate information regarding Plaintiff’s credit
initially; however, the undisputed evidence reflects that the misinformation was
corrected well before Plaintiff sought refinancing.
20

The undisputed evidence does not support a finding that NCS engaged in a
willful violation of the FCRA. Plaintiff fails to present sufficient evidence to
create an issue of fact with respect to whether he suffered actual damages as a
result of NCS’ alleged violation and therefore NCS is entitled to summary
judgment with respect to Plaintiff’s claim alleging a negligent violation of the
FCRA as well.
Accordingly,
IT IS ORDERED, that Plaintiff’s Motion for Summary Judgment (ECF No.
23) is DENIED;
IT IS FURTHER ORDERED, that Defendant National Credit Systems,
Inc.’s Motion for Summary Judgment (ECF No. 23) is GRANTED.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: August 26, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, August 26, 2014, by electronic and/or
U.S. First Class mail.
S/ Richard Loury
Case Manager

21