SERFESS v. EQUIFAX CREDIT INFORMATION SERVICES, LLC et al
OPINION FILED. Signed by Judge Robert B. Kugler on 8/24/16. (js)
NOT FOR PUBLICATION
(Doc. Nos. 106 & 111)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 13–0406 (RBK/JS)
EQUIFAX CREDIT INFORMATION
SERVICES, LLC, et al.,
KUGLER, United States District Judge:
This matter is before the Court upon Defendant Bank of America, N.A.’s (“BANA”)
Motion for Summary Judgment (Doc. No. 106) and Plaintiff Joseph Serfess’s Motion to Strike
(Doc. No. 111). For the reasons set forth in this Opinion, Plaintiff’s Motion to Strike is DENIED
and BANA’s Motion for Summary Judgment is GRANTED.
SUMMARY JUDGMENT STANDARD
The court should grant a motion for summary judgment when the moving party “shows
that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
deciding whether there is any genuine issue for trial, the court is not to weigh evidence or decide
issues of fact. Id. at 248. Because fact and credibility determinations are for the jury, the nonmoving party’s evidence is to be believed and ambiguities construed in her favor. Id. at 255.
Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Anderson, 477 U.S. at 256. The nonmoving party must
at least present probative evidence from which jury might return a verdict in his favor. Id. at 257.
Furthermore, the nonmoving may not simply allege facts, but instead must “identify those facts
of record which would contradict the facts identified by the movant.” Port Auth. of New York
and New Jersey v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002). The movant is
entitled to summary judgment where the non-moving party fails to “make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
This action arises out of allegedly inaccurate information that appeared on Plaintiff’s
credit report following the short sale of his property. See Third Amd. Compl. at 3 (Doc. No. 99).
Before describing the facts of this case, the Court notes that Plaintiff’s Statement of Material
Facts fails to present more than mere allegations or denials. See Anderson, 477 U.S. at 256. He
fails to cite to any affidavits or other evidence properly submitted to the record. See generally
Pl.’s Statement of Material Facts (“PSMF”). Instead, Plaintiff largely cites to his Third Amended
Complaint, see, e.g., PSMF ¶ 1, and his Second Amended Complaint. See, e.g., id. ¶ 5. The
exhibits attached to Plaintiff’s Second Amended Complaint were not properly submitted to the
record, and the Court cannot consider those documents as evidence in deciding Defendant’s
Motion for Summary Judgment. See L. Civ. R. 56.1(a). This Court will construe the evidence in
the record in the light most favorable to Plaintiff. See Anderson, 477 U.S. at 255.
On November 27, 2006, Plaintiff and Phyllis Ferretti signed an Adjustable Rate Note
(“Loan”) to refinance real property in Clayton, Delaware (“Property”). See Defendant’s
Statement of Material Facts (“DSMF”) ¶ 3–4. The Loan’s original principal amount was
$356,400, and it was secured by a mortgage on the Property. See id. ¶ 5. Through a series of
mergers and acquisitions, Defendant Bank of America, N.A. (“BANA”), began to service
Plaintiff’s Loan on July 1, 2011. Id. ¶¶ 6–9.
On March 31, 2011, Plaintiff and Ms. Ferretti sold the Property for $285,000.00. Id. ¶ 12.
Plaintiff and Ms. Ferretti, along with the buyers, signed a HUD-1 Settlement Statement. Id. ¶ 13.
The sale was a “short sale”—BANA received a payment of $262,821.48, and Plaintiff and Ms.
Ferretti owed BANA a deficiency balance of $87,745.93 on the Loan. Id. ¶¶ 14–16. BANA
reported to Equifax that Plaintiff’s Loan had been “charged off”. BANA Decl. ¶¶ 23–25.
Plaintiff disputed BANA’s credit reporting regarding the Loan to Equifax Credit
Information Services, LLC (“Equifax”) eight times. See DSMF ¶¶ 19–20. Equifax sent
Automated Credit Dispute Verification forms (“ACDV”) to BANA regarding each dispute. See
id. ¶¶ 19–43. BANA received the last ACDV from Equifax regarding Plaintiff’s loan on
February 15, 2013. Id. ¶ 43. BANA investigated each dispute and reported the results of its
investigations to Equifax. See id. ¶¶ 19–43.
Plaintiff filed his Complaint against Equifax on January 10, 2013 (Doc. No. 1).1 On
February 28, 2014, Plaintiff moved to amend his Complaint to include claims against BANA
(Doc. No. 25). On February 5, 2015, this Court granted BANA’s motion to dismiss in its
entirety, but allowed Plaintiff to file a motion for leave to amend his complaint within fourteen
Equifax has since been dismissed as a party to this case. See Aug. 28, 2014 Op. and Order
(Doc. Nos. 60 & 61).
(14) days. See Feb. 5, 2015 Op. and Order. Magistrate Judge Schneider granted in part and
denied in part Plaintiff’s Motion for Leave to File Second (Third) Amended Complaint. See
generally Magistrate Judge Schneider’s Order of August 27, 2015 (Doc. No. 95). The Order
denied Plaintiff’s motion “except to the extent it pleads a new cause of action under” 15 U.S.C.
§1681s-2(b) against BANA. Id. BANA then filed its Motion for Summary Judgment (Doc. No.
106) on February 1, 2016, and Plaintiff filed his Motion to Strike (Doc. No. 111) on February 26,
The Court will address Plaintiff’s Motion to Strike before deciding Defendant’s Motion
for Summary Judgment.
Plaintiff’s Motion to Strike
Plaintiff moves to strike (1) the Declaration of Robert E. Warring, Esq. (“Warring
Declaration”) (Doc. No. 106–6), (2) Defendant’s Memorandum of Points and Authorities
(“Defendant’s Memorandum”) (Doc. No. 106–1), and (3) the Declaration of Bank of America,
N.A. (“BANA Declaration”) (Doc. No. 108). See Pl.’s Mot. at 1.
The Warring Declaration sets out the procedural history of this case, see Warren Decl. ¶¶
3–21, and authenticates Plaintiff’s “Responses to Defendant’s Requests for Production” and
relevant documents attached thereto. See id. ¶¶ 22–23. Mr. Warring’s averments regarding the
procedural history of this case are not admissible as evidence against Plaintiff, but do provide
context for Defendant’s Motion for Summary Judgment. The Court declines to strike such
Plaintiff argues that this Court should strike the Warring Declaration because Mr.
Warring is Defendant’s attorney. See Pl.’s Mot. at 3–4. But neither the Federal Rules of Civil
Procedure nor this Court’s Local Civil Rules prohibit attorneys from submitting declarations to
authenticate documents. See Fed. R. Civ. P. 56(c)(4) (providing that “[a]n affidavit or declaration
used to support or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.”); L. Civ. R. 7.2(a) (stating that “[a]ffidavits shall be restricted to statements
of fact within the personal knowledge of the affiant,” and “[a]rgument of the facts and the law
shall not be contained in affidavits”). This Court is satisfied that Mr. Warring has personal
knowledge regarding discovery and Plaintiff’s “Responses to Defendant’s Requests for
Production” in this case. As such, Plaintiff’s Motion to Strike the Warring Declaration is
Defendant’s Memorandum of Points and Authorities is not evidence against Plaintiff, but
rather a brief that sets out the legal arguments for why this Court should grant summary
judgment to Defendant. This Court agrees with Plaintiff that Defendant’s Memorandum is
inadmissible at trial and cannot be considered evidence. See Pl.’s Mot. at 2. But Plaintiff has
provided no basis upon which this Court should strike Defendant’s legal arguments. As such,
Plaintiff’s Motion to Strike Defendant’s Memorandum is DENIED.
The BANA Declaration is sworn by Wendy Covarrubias Sevier, an Assistant Vice
President for BANA. See BANA Decl. ¶ 1. Plaintiff argues that the BANA Declaration should be
stricken as a “sham affidavit” because “Ms. Sevier was never listed as a witness, was never
deposed, and was never cross-examined by Plaintiff[.]” See Pl.’s Mot. at 5–7. But the “sham
affidavit” doctrine does not apply here—Ms. Sevier did not give previous deposition testimony
that the BANA Declaration now contradicts. She avers that “[t]he information contained in this
declaration is true and correct to the best of my personal knowledge, information, and belief” and
that she could competently testify based on her “personal knowledge and the business records of
BANA.” BANA Decl. ¶ 1. Business records “are not excluded by the rule against hearsay,” if
such records are properly admitted pursuant to Federal Rule of Evidence 803(6). Plaintiff’s
Motion to Strike the BANA Declaration is DENIED.
Defendant’s Motion for Summary Judgment
Plaintiff’s only remaining claim against BANA is his 15 U.S.C. § 1681s–2(b) claim
under the Fair Credit Reporting Act (“FCRA”). See Magistrate Judge Schneider’s April 14, 2016
Order (Doc. No. 117). Plaintiff alleges that Defendant violated Section 1681s–2(b) by “failing to
conduct a reasonable investigation of Plaintiff’s dispute[.]” Second (Third) Amd. Compl. ¶¶ 41,
49 (Doc. No. 99). Section 1681o provides a private cause of action for violations of Section
1681s–2(b). Seamans v. Temple University, 744 F.3d 853, 864 (3d Cir. 2014) (citing
SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 358 (3d Cir. 2011)).
Statute of Limitations
Section 1681p of the FCRA provides that a claim must be brought no later than “2 years
after the date of discovery by the plaintiff of the violation that is the basis for such liability[.]” To
determine when Plaintiff brought his claim against BANA, this Court must decide whether his
Amended Complaint relates back to his original Complaint. Plaintiff filed his original Complaint
against Equifax on January 10, 2013 (Doc. No. 1). The original Complaint did not bring any
claims against BANA. See generally Compl. Plaintiff first alleged claims against BANA on
February 28, 2014, in his Motion for Leave to Amend (Doc. No. 25).
Federal Rule of Civil Procedure 12(c) governs when “[a]n amendment to a pleading
relates back to the date of the original pleading[.]” Because BANA was not named as a
defendant in Plaintiff’s original Complaint, his Amended Complaint cannot relate back to the
original Complaint unless BANA “received such notice of the action that it will not be
prejudiced in defending on the merits” and “knew or should have known that the action would
have been brought against it, but for a mistake concerning the proper party’s identity.” Fed. R.
Civ. P. 12(c)(1)(C)(i)–(ii). Plaintiff failed to introduce any evidence that BANA received notice
of the original Complaint, or that BANA should have known that Plaintiff was attempting to
bring suit against it. As such, this Court finds that Plaintiff’s Motion for Leave to Amend does
not relate back to the filing of the original Complaint. The date Plaintiff filed his Motion for
Leave to Amend—February 28, 2014—is therefore the relevant date for the purposes of the
statute of limitations. The two-year statute of limitations bars Plaintiff’s claims for any alleged
violations by BANA that Plaintiff discovered before February 28, 2012.
15 U.S.C. § 1681s–2(b)
The only claim before this Court is Plaintiff’s 15 U.S.C. § 1681s–2(b) claim against
BANA, covering the disputes raised after February 28, 2012. Section 1681s–2(b) requires
furnishers of credit information to conduct reasonable investigations with respect to any
information disputed to a consumer reporting agency. See Seamans, 744 F.3d at 864. Whether an
investigation is reasonable “is normally a question for trial unless the reasonableness or
unreasonableness of the procedures is beyond question.” See Seasmans, 744 F.3d at 864–65
(citing Cortez v. Trans Union, LLC, 617 F.3d 688, 709 (3d Cir. 2010)).
Plaintiff raised three disputes after February 28, 2012—March 1, 2012, April 15, 2012,
and February 15, 2013. BANA introduced evidence that it properly investigated those disputes,
determined the accuracy of the disputed information, and reported the results of its investigations
to Equifax. See BANA Decl. ¶¶ 38–44. The evidence before this Court demonstrates that
Plaintiff owed BANA a deficiency balance of $87,745.00 on the Loan, as BANA reported to
Equifax after the March 1, 2012 and April 15, 2012 disputes. Plaintiff failed to introduce any
evidence that the disputed information was inaccurate or incomplete, or that BANA did not
conduct reasonable investigations with respect to the disputed information.
The Court acknowledges that BANA changed its reporting to Equifax after the February
15, 2013 dispute to state that the Loan was a “paid or closed Account/zero balance” and “paid in
full for less than the full amount”. See DSMF ¶ 42. But there is still no evidence before this
Court that BANA’s previous reports that Plaintiff owed a deficiency balance of $87,745.00 on
the Loan were inaccurate, or that BANA modified the report for any reason other than “internal
business purposes”. See BANA Decl. ¶ 45. As such, there is no genuine dispute of material fact
regarding whether BANA satisfied its obligation to reasonably investigate pursuant to Section
1681s–2(b).2 This Court will therefore grant BANA’s Motion for Summary Judgment, and enter
judgment in favor of BANA and against Plaintiff.
The Court notes that, even if Plaintiff properly introduced evidence that the disputed
information was inaccurate or incomplete and that BANA failed to reasonably investigate the
disputes, Plaintiff still failed to introduce any evidence into the record that he was harmed by
BANA’s furnished information. For example, Plaintiff relies on allegations in his Second
Amended Complaint to support his assertion that he was not able to purchase real property
because of information submitted by BANA. See PSMF ¶ 11.
For the foregoing reasons, Plaintiff’s Motion to Strike is DENIED and BANA’s Motion
for Summary Judgment is GRANTED. Judgment will be entered for BANA and against
s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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