Hinds v. Chexsystem Consumer Relations et al
Filing
43
MEMORANDUM & ORDER granting 25 Motion for Summary Judgment; granting 31 Motion for Summary Judgment; For the foregoing reasons, Defendants' motions for summary judgment (Docket Entries 25, 31) are GRANTED. The Clerk of the Court is direc ted to enter judgment accordingly, mail a copy of this Memorandum and Order to pro se Plaintiff, and mark this case CLOSED. Given Plaintiff's pro se status, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is DENIED for purposes of an appeal. So Ordered by Judge Joanna Seybert on 9/30/2015. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
CHANENE HINDS,
Plaintiff,
-against-
MEMORANDUM & ORDER
14-CV-0342(JS)(AYS)
CHEXSYSTEM CONSUMER RELATIONS and
BANK OF AMERICA, N.A.,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Chanene Hinds, pro se
62 East Centennial Avenue
Roosevelt, NY 11575
For Chexsystem:
Aleksander Piotr Powietrzynski, Esq.
Winston & Winston PC
295 Madison Ave, Suite 930
New York, NY 10017
For Bank of
America:
Kristen Danielle Romano, Esq.
Odera Chuke, Esq.
Wilson Elser Moskowitz Edelman & Dicker, LLP
1133 Westchester Avenue
White Plains, NY 10604
SEYBERT, District Judge:
Pro se plaintiff Chanene Hinds (“Plaintiff”) commenced
this action on January 7, 2014 against defendants Chexsystem
Consumer Relations (“Chexsystem”) and Bank of America, N.A. (“Bank
of
America”
or
“BofA,”
and
together
with
Chexsystem,
“Defendants”), asserting violations of the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681 et seq., as amended by the Fair and
Accurate Credit Transactions Act of 2003 (“FACTA”), Pub. L. No.
108–159, 117 Stat. 1952.
Defendants move for summary judgment
pursuant to Federal Rule of Civil Procedure 56.
31.)
(Docket Entry 25,
For the following reasons, Defendants’ motions are GRANTED.
BACKGROUND
I.
Deficiencies of Plaintiff’s 56.1 Counterstatement
Before summarizing the factual background of this case,
the Court must address Plaintiff’s 56.1 Counterstatement.
Docket Entry 24.)
(See
Local Civil Rule 56.1 requires a party moving
for summary judgment to file a “short and concise statement, in
numbered paragraphs” of the alleged undisputed facts on which the
moving party relies, together with citation to admissible evidence
supporting each such fact.
See LOCAL CIV. R. 56.1(a), (d).
In
turn, the party opposing summary judgment must file a statement
containing “a correspondingly numbered paragraph responding to
each numbered paragraph” set forth in the moving party’s statement.
LOCAL CIV. R. 56.1(b).
If the opposing party fails to controvert a
fact set forth in the moving party’s 56.1 statement that is also
supported by admissible evidence, that fact will be deemed admitted
for purposes of the summary judgment motion.
LOCAL CIV. R. 56.1(c);
Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003).
Where, as in this case, a represented party moves for
summary judgment against a pro se litigant, Local Civil Rule 56.2
requires the represented party to serve the pro se litigant with
a
form
notice
regarding
the
procedure
2
for
opposing
summary
LOCAL CIV. R. 56.2.
judgment.
The Rule 56.2 notice generally
explains the summary judgment process and warns a pro se litigant
that dismissal of the complaint may result in the event of a
failure to “respond to th[e] motion on time by filing sworn
affidavits and/or other documents as required by Rule 56(c) of the
Federal Rules of Civil Procedure and by Local Civil Rule 56.1.”
LOCAL CIV. R. 56.2.
Bank
Statements
on
of
America
Plaintiff
and
on
Chexsystem
July
30
and
served
October
their
8,
56.1
2014,
respectively, but did not file proof of compliance with Local Civil
Rule 56.2.
served
(Docket Entries 20, 21-2.)
Defendants
with
a
document
Plaintiff subsequently
responding
to
their
56.1
Statements, but it did not comply with Local Civil Rule 56.1.
(Docket Entry 20, at 15-201.)
Specifically, it did not cite to
admissible evidence or set out correspondingly numbered paragraphs
responding
Statements.
to
the
paragraphs
set
out
in
Defendants’
56.1
Accordingly, at the pre-motion conference on November
12, 2014, the Court served Plaintiff with a Rule 56.2 notice,
explained to her the consequences of failing to file a proper 56.1
counterstatement, and granted her until December 10, 2014 to file
a corrected 56.1 counterstatement. (See Docket Entry 23.) Despite
These page numbers refer to the page numbers supplied by the
Electronic Case Filing system.
1
3
the notice and warning, Plaintiff’s new 56.1 Counterstatement
suffers from the same deficiencies as the first. (See Docket Entry
24.)
It does not directly respond to any of the facts alleged in
Defendants’
56.1
Statements,
nor
does
it
cite
to
admissible
evidence that would controvert any of the facts asserted
in the
56.1 Statements.
The Court “is ordinarily obligated to afford a special
solicitude to pro se litigants.”
90, 101 (2d Cir. 2010).
Tracy v. Freshwater, 623 F.3d
However, if a pro se litigant is served
with a Local Civil Rule 56.2 notice, he or she is “then not excused
from meeting the requirements of Local Rule 56.1.”
of
New
York,
Accordingly,
to
480
the
F.
Supp.
extent
2d
that
689,
the
703
Allen v. City
(S.D.N.Y.
factual
2007).
assertions
in
Defendants’ 56.1 Statements are supported by admissible evidence,
the Court deems them admitted.
II.
Factual Background
In August 2007, Plaintiff and her then-husband, Clarence
Smith (“Smith”), opened two joint accounts with Bank of America.
When they opened the accounts, Plaintiff and Smith signed forms
acknowledging that a separate deposit agreement would govern the
accounts.
(Chuke Decl., Docket Entry 26, Ex. A.)
The deposit
agreement provided that the accounts were jointly held, that
Plaintiff and Smith were the “agents” of each other with respect
to the accounts, and that Plaintiff and Smith “authorize[d] each
4
other . . . to operate the account[s] without the consent of [the]
other[,] . . . includ[ing] [the] authority to: . . . draw upon any
overdraft.”
(Chuke Decl., Docket Entry 26, Ex. B at 3.)
The
deposit agreement further provided that Plaintiff and Smith were
“jointly and severally liable to [Bank of America] for: . . . all
amounts owed to [Bank of America] . . . [, including] overdrafts.”
(Chuke Decl. Ex. B at 4.)
Between
February
and
May
2012,
several
overdraft
transactions were made that resulted in negative balances on the
accounts.
(BofA’s
56.1
Stmt.,
Docket
Entry
20,
Chexsystem’s 56.1 Stmt., Docket Entry 21-1, ¶¶ 6-11.)
¶¶
7-8;
In June
2012, after nearly three consecutive months of negative balances,
Bank of America closed the accounts and reported the overdrafts as
“account
abuse”
to
Chexsystem,
a
consumer
reporting
agency.
(BofA’s 56.1 Stmt. ¶¶ 10, 12; Chexsystem’s 56.1 Stmt. ¶¶ 9-10;
Weber Aff., Docket Entry 34, Ex. 1.)
Chexsystem subsequently
included the information on Plaintiff’s consumer report.
Between April 5, 2013 and January 6, 2014, Plaintiff
sent
Chexsystem
nine
letters
disputing
the
information
and
requesting that it be removed from her consumer report. (See Weber
Aff. Exs. 2, 7, 10, 12, 18, 24, 26, 31, 33.)
Plaintiff claimed
that the information should not appear on her consumer report
because Smith actually made the overdraft transactions while he
and Plaintiff were separated. (See, e.g., Weber Aff. Ex. 10 (“[M]y
5
husband, who [sic] I am separated from and filing for divorce[,]
was the one using this account and doing whatever he is doing
without my knowledge”); Ex. 18 (“I now have proof that it is my
husband who has done whatever it is for my account to have been
placed in CHEXSYSTEM.” (capitalization in original)).
At the time
Smith made the overdraft transactions, he and Plaintiff were still
married and still jointly held the accounts.
In response to four of Plaintiff’s letters, Chexsystem
immediately notified Bank of America of the dispute and asked Bank
of America to reinvestigate the information.
13, 20, 28.)
(Weber Aff. Exs. 4,
In response to each request for reinvestigation,
Bank of America promptly investigated the information, determined
that the information was accurate, and reported the results of the
investigation to Chexsystem.
29.)
(Weber Aff. Exs. 5, 6, 15, 21, 22,
Chexsystem communicated the results of each investigation to
Plaintiff.
(Weber Aff. Exs. 9, 17, 23, 30.)
Chexsystem declined
to investigate the remaining letters because they either were
duplicative of pending investigations or Chexsystem determined
that they did not warrant an investigation in light of the fact
that Bank of America had already verified the information on
multiple occasions.
(See Weber Aff. Exs 8, 10, 25, 32, 34.)
Between May 21 and December 19, 2013, Plaintiff also
sent five dispute letters directly to Bank of America.
Decl. Ex. H.)
(See Chuke
Like the letters to Chexsystem, Plaintiff again
6
asserted that the information on her consumer report was inaccurate
because Smith was responsible for the overdraft transactions. (See
Chuke
Decl.
Ex.
H.)
Bank
of
America
never
conducted
an
investigation in direct response to any of Plaintiff’s letters,
and the information on Plaintiff’s consumer report was never
removed.
Plaintiff commenced this action on January 7, 2014,
alleging that Defendants violated the FCRA.
On January 8, 2015,
Defendants filed motions for summary judgment pursuant to Federal
Rule of Civil Procedure 56.
(Docket Entries 25, 31.)
On March 4
and 5, 2015, Defendants filed letters advising the Court that they
had not received an opposition from Plaintiff by the deadline set
by the Court at the pre-motion conference.
41.)
Plaintiff
attempted
to
file
an
(Docket Entries 40,
opposition
thereafter.
However, on April 3, 2015, the Pro Se Office returned Plaintiff’s
opposition papers without docketing because they did not indicate
whether Plaintiff served them on Defendants.
(Docket Entry 42.)
Plaintiff has not sought an extension of time to file a late
opposition, and the docket reflects no activity since the Pro Se
Office returned Plaintiff’s opposition papers.
DISCUSSION
I.
Legal Standard
Summary judgment is appropriate where “the movant shows
that there is no genuine dispute as to any material fact and the
7
movant is entitled to judgment as a matter of law.”
FED. R. CIV.
P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986).
“In assessing the record to determine whether there is a
genuine issue to be tried as to any material fact, the court is
required to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary
judgment is sought.”
McLee v. Chrysler Corp., 109 F.3d 130, 134
(2d Cir. 1997).
“The burden of showing the absence of any genuine dispute
as to a material fact rests on the party seeking summary judgment.”
Id.; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90
S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
A genuine factual issue
exists if “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”
To
defeat
summary
judgment,
“the
Anderson, 477 U.S. at 248.
non-movant
must
‘set
forth
specific facts showing that there is a genuine issue for trial.’”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)
(quoting Anderson, 477 U.S. at 256).
“[M]ere speculation or
conjecture as to the true nature of the facts” will not overcome
a motion for summary judgment.
Knight v. U.S. Fire Ins. Co., 804
F.2d 9, 12 (2d Cir. 1986); see also Williams v. Smith, 781 F.2d
319, 323 (2d Cir. 1986) (“Mere conclusory allegations or denials
8
will not suffice.” (citation omitted)); Weinstock, 224 F.3d at 41
(“[U]nsupported allegations do not create a material issue of
fact.”).
II.
Analysis
The
ensure
the
FCRA
“regulates
confidentiality,
credit
accuracy,
utilization of consumers' information.”
N.A.,
702
F.3d
§ 1681(b)).
148,
150
reporting
(2d
Cir.
procedures
relevancy,
and
to
proper
Longman v. Wachovia Bank,
2012)
(citing
15
U.S.C.
It “‘places distinct obligations on three types of
entities: consumer reporting agencies, users of consumer reports,
and furnishers of information to consumer reporting agencies.’”
Nguyen v. Ridgewood Sav. Bank, No. 14-CV-1058, 2015 WL 2354308, at
*7 (E.D.N.Y. May 15, 2015) (quoting Redhead v. Winston & Winston,
P.C., No. 01–CV–11475, 2002 WL 31106934, at *3 (S.D.N.Y. Sept. 20,
2002)).
The Complaint is scant and does not identify the specific
provisions of the FCRA upon which Plaintiff bases her claims.
The
Complaint alleges that Chexsystem “would not provide [Plaintiff]
with the evidence they use [sic] to validate” the information on
her consumer report and that Bank of America “never ever responded
to [her] as the law states they have 30 days to repond [sic].”
(Compl. at 2.)
Based on these allegations, Plaintiff appears to
9
invoke Sections 1681e(b) and 1681i of the FCRA against Chexsystem
and Section 1681s-2(a)(8) of the FCRA against Bank of America.2
Section 1681e(b) provides that “[w]henever a consumer
reporting
agency
prepares
a
consumer
report
it
shall
follow
reasonable procedures to assure maximum possible accuracy of the
information
relates.”
concerning
the
individual
15 U.S.C. § 1681e(b).
about
whom
the
report
Section 1681i sets forth the
procedures a consumer reporting agency must follow after receiving
a dispute from a consumer as to the accuracy of information
included in a consumer report.
2(a)(8)
requires
a
furnisher
15 U.S.C. § 1681i.
of
information
Section 1681sto
conduct
an
investigation after receiving a direct dispute from a consumer.
15 U.S.C. § 1681s-2(a)(8).
Chexsystem and Bank of America are
Plaintiff also alleges for the first time in her 56.1
Counterstatement and opposition papers that she is also
asserting claims of negligence and defamation under New York law
and claims under the Fair Debt Collection Practices Act and the
New York Consumer Credit Fairness Act. (Pl.’s 56.1
Counterstmt., Docket Entry 24, at 2; Pl.’s Opp. Br., Docket
Entry 42, at 1.) However, the Court “cannot consider claims
that are alleged for the first time in opposition papers to a
motion.” Henry v. Dow Jones, No. 08-CV-5316, 2009 WL 210680, at
*4 n.5 (S.D.N.Y. Jan. 28, 2009); Malmsteen v. Universal Music
Grp., Inc., 940 F. Supp. 2d 123, 135 (S.D.N.Y. 2013) (“Because
[the plaintiff] failed to include this claim in his Amended
Complaint, instead raising it for the first time in opposition
to summary judgment, it is waived. (footnote omitted)); Brandon
v. City of New York, 705 F. Supp. 2d 261, 278 (S.D.N.Y. 2010)
(“It is black letter law that a party may not raise new claims
for the first time in opposition to summary judgment.”).
Accordingly, Plaintiff’s newly asserted claims are rejected.
2
10
entitled to summary judgment on all of Plaintiff’s claims under
these provisions.
With respect to the claims against Chexsystem, in order
to
prevail
under
Section
1681e(b)
or
1681i,
Plaintiff
must
demonstrate that the information included in her consumer report
was inaccurate.
See Nguyen, 2015 WL 2354308, at *10-11 (“In order
to succeed on a claim under Section 1681e(b), a plaintiff must
show that: ‘. . . the consumer reporting agency reported inaccurate
information about the plaintiff.’” (quoting Gorman v. Experian
Info. Solutions, Inc., No. 07-CV-1846, 2008 WL 4934047, at *4
(S.D.N.Y. Nov. 19, 2008)); Jones v. Experian Info. Solutions, Inc.,
982 F. Supp. 2d 268, 272-73 (S.D.N.Y. 2013) (“[A] ‘plaintiff
asserting claims under § 1681i must demonstrate that the disputed
information is inaccurate in order to prevail on allegations that
a consumer reporting agency had failed to reasonably reinvestigate
a disputed item.’” (quoting Fashakin v. Nextel Commc’ns, No. 05CV-3080,
2009
WL
790350,
at
*11
(E.D.N.Y.
Mar.
25,
2009)).
However, there is no dispute that Chexsystem reported accurate
information about Plaintiff.
accounts
because
balances
for
they
nearly
were
three
Chexsystem reported Plaintiff’s
overdrawn
consecutive
and
maintained
months.
negative
Contrary
to
Plaintiff’s convictions, it is irrelevant that Smith made the
transactions
that
resulted
in
the
negative
balances.
When
Plaintiff opened the accounts with Smith, she acknowledged that
11
the accounts would be jointly held; she authorized Smith to operate
the accounts without her consent, including to overdraw on the
accounts; and she agreed to be held jointly and severally liable
for the conduct of the other with respect to the accounts.
Decl. Ex. B at 3-4.)
(Chuke
Thus, Plaintiff cannot argue that Chexsystem
reported inaccurate information about her accounts, and this is
fatal to her claims under Sections 1681e(b) and 1681i.
Finally, Plaintiff’s claim against Bank of America also
fails because there is no private right of action under Section
1681s-2(a)(8).
Longman, 702 F.3d at 151 (holding that there is no
private right of action for a violation of Section 1681s-2(a)
because
“the
provision
to
statute
federal
plainly
and
restricts
state
enforcement
authorities”).3
of
that
Accordingly,
Defendants’ motions for summary judgment are GRANTED.
Although Section 1681s-2(a) does not provide a private right of
action, Section 1681s–2(b) does. In contrast to Section 1681s2(a), which is triggered when a consumer sends a dispute
directly to a furnisher of information, Section 1681s-2(b) is
triggered when the furnisher receives a consumer’s dispute from
a consumer reporting agency. Compare 15 U.S.C. § 1681s–2(a)(8)
with 15 U.S.C. § 1681s-2(b)(1). Under Section 1681s-2(b)(1),
upon receipt of such, the furnisher must conduct an
investigation and report the results to the consumer reporting
agency. 15 U.S.C. § 1681s-2(b)(1). If the furnisher’s
investigation reveals that the information is incomplete or
inaccurate, it must correct the information. 15 U.S.C. § 1681s2(b)(1). The Court does not read the Complaint to assert a
claim under Section 1681s-2(b). However, to the extent it can
be read to assert such a claim, it would fail because Bank of
America complied with the procedure set out in Section 1681s2(b) each time it received a notice of dispute from Chexsystem.
3
12
CONCLUSION
For
the
foregoing
reasons,
Defendants’
motions
summary judgment (Docket Entries 25, 31) are GRANTED.
for
The Clerk
of the Court is directed to enter judgment accordingly, mail a
copy of this Memorandum and Order to pro se Plaintiff, and mark
this case CLOSED.
Given Plaintiff’s pro se status, the Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith and therefore
in forma pauperis status is DENIED for purposes of an appeal.
Coppedge v. United States, 369 U.S. 438, 444–45, 82 S.Ct. 917, 8
L.Ed.2d 21 (1962).
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
September
30 , 2015
Central Islip, New York
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