THOMAS v. SANTANDER CONSUMER USA
Filing
16
MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE re 13 MOTION for Summary Judgment filed by SANTANDER CONSUMER USA be GRANTED INPART and DENIED IN PART in that the Court should enter judgment as a matter of law for Santander and should dismiss this action with prejudice, but the Court should decline to award attorney's fees to Santander under 15 U.S.C. §§ 1681n(c) and 1681o(b) signed by MAG/JUDGE L. PATRICK AULD on 1/30/12. (Wilson, JoAnne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
HATTIE L. THOMAS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
SANTANDER CONSUMER USA,
Defendant.
1:11CV605
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge for a recommended ruling on Santander Consumer
USA, Inc.’s Motion for Summary Judgment (Docket Entry 13). For the
reasons that follow, the Court should grant Defendant’s instant
Motion in part and deny it in part.
Background
Plaintiff’s Complaint, filed with this Court pro se, alleges
violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§
1681,
et
(“Santander”).
seq.,
against
Santander
(See Docket Entry 2.)
Consumer
USA,
Inc.
Plaintiff’s allegations
relate to a perceived failure on the part of Santander - holder of
Plaintiff’s account related to a vehicle purchase - to adequately
investigate, and to refrain from reporting, Plaintiff’s disputed
ownership of said account.
(See Docket Entry 2, ¶¶ 7, 23.)
Specifically, Plaintiff alleges:
Defendant violated sections 1681n and 1681o of the
FCRA by engaging in the following conduct that violates
15 U.S.C. § 1681s-2 and 168H:
a.
Willfully and/or negligently failing to
conduct an investigation of the inaccurate
information that Plaintiff disputed;
b.
Willfully and/or negligently failing to review
all relevant information concerning Plaintiffs
[sic]
accounts
which
was
provided
to
Defendants;
c.
Willfully and/or negligently reporting the
inaccurate status of the information to all
credit reporting agencies;
d.
Willfully and/or negligently failing to
properly participate, investigate and comply
with the re-investigations that were conducted
by any and all Credit reporting agencies
concerning the inaccurate information disputed
by Plaintiff;
e.
Willfully and/or negligently continuing to
furnish
and
disseminate
inaccurate
and
derogatory
credit,
account
and
other
information concerning Plaintiff, despite
knowing that said information was inaccurate;
f.
Willfully and/or negligently failing to comply
with the requirements imposed on furnishes
[sic] of information pursuant to 15 U.S.C. §
1681s-2; and/or
g.
Willfully and/or negligently failing to comply
with the requirements imposed on consumer
reporting agencies pursuant to 15 U.S.C.
§ 1681i.
(Id., ¶ 23.)
The matter now comes before the undersigned United States
Magistrate Judge on Santander’s instant motion for summary judgment
(Docket Entry 13) which moves the Court to find for Santander as a
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matter of law (Docket Entry 14 at 1) and to award Santander
“compensation for the attorney’s fees it has incurred” pursuant to
15 U.S.C. §§ 1681n(c) and 1681o(b) (Docket Entry 14 at 2).1
The
Clerk mailed Plaintiff a letter explaining that Plaintiff had “the
right to file a 20-page response in opposition to [Santander’s
instant Motion] . . . .”
(Docket Entry 15 at 1.)
The letter
specifically cautioned Plaintiff that her “failure to respond or,
if appropriate, to file affidavits or evidence in rebuttal within
the
allowed
time
may
cause
the
court
to
conclude
that
the
defendant’s contentions are undisputed and/or that [she] no longer
wish[es] to pursue the matter.
Therefore, unless [she] file[s] a
response in opposition to the defendant’s motion, it is likely
[her] case will be dismissed or summary judgment granted in favor
of the defendant.”
(Id.)
Despite these warnings, Plaintiff has
not filed a response to Santander’s instant Motion.
(See Docket
Entries dated Dec. 1, 2011, to present.)
Summary Judgment
Plaintiff’s case warrants a finding of summary judgment for
Santander both because of Plaintiff’s failure to respond to the
instant Motion and because there is no genuine issue of material
Although Santander’s motion cites 15 U.S.C. § 1681o(c), the undersigned
interprets it as a motion for relief under 15 U.S.C. § 1681o(b), which allows
the Court to award attorney’s fees upon a finding that a pleading was filed “in
bad faith or for purposes of harassment.” 15 U.S.C. § 1681o(b). There is not
a subsection (c) within 15 U.S.C. § 1681o.
1
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fact and Santander is entitled to judgment as a matter of law
pursuant to Fed. R. Civ. P. 56.
Under this Court’s Local Rules, failure to respond to a motion
generally warrants granting the relief requested.
See M.D.N.C. R.
7.3(k). Moreover, the Clerk specifically warned Plaintiff that her
failure to respond to the instant Motion would likely lead to
dismissal or a finding of summary judgment for Santander.
(See
Docket Entry 15 at 1.) Plaintiff has offered no explanation to the
Court for said failure.
Accordingly, the Court should follow its
general rule and enter summary judgment.
In addition, Santander is entitled to summary judgment because
there is no genuine issue of material fact.
Under Fed. R. Civ. P.
56(a), “[t]he [C]ourt shall grant summary judgment 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.”
In
considering that question, the Court “may not make credibility
determinations
Plumbing
or
Prods.,
weigh
Inc.,
the
530
evidence.”
U.S.
133,
Reeves
150
v.
(2000).
Sanderson
However,
“unsupported speculation is not sufficient to defeat a summary
judgment motion if the undisputed evidence indicates that the other
party should win as a matter of law.”
Francis v. Booz, Allen &
Hamilton, Inc., 452 F.3d 299, 308 (4th Cir.2006).
In the instant case, a fair reading of Plaintiff’s Complaint
leads to the conclusion that Plaintiff brings this action against
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Santander specifically for violation of 15 U.S.C. § 1681s-2(b).
Section 1681s-2(b) pertains to the obligations of an entity in
Satander’s role when given notice of a dispute.
It provides:
After receiving notice pursuant to section 1681i(a)(2) of
this title of a dispute with regard to the completeness
or accuracy of any information provided by a person to a
consumer reporting agency, the person shall—
(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).
In conjunction with its summary judgment motion, Santander has
provided
credible
requirements.
evidence
showing
its
compliance
with
these
Specifically, in the form of the sworn statement of
its Senior Vice President for Servicing Operations, Santander has
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detailed its investigation into Plaintiff’s account.
Entry 14-1.)
(See Docket
Santander has also submitted the original credit
application of Plaintiff, complete with Plaintiff’s signature and
a copy of Plaintiff’s driver’s license, along with a retail sales
installment contract signed by Plaintiff (see id. at 4-8), all of
which
support
its
assertion
that
its
investigation
properly
identified Plaintiff as the holder of the account in question.
Plaintiff, by not responding to the instant Motion, has provided no
evidence to rebut Santander’s showing.
Accordingly, because the
“undisputed evidence indicates that [Santander] should win as a
matter of law,” Booz, Allen & Hamilton, 452 F.3d at 308, Santander
is entitled to summary judgment.
Relief Under 15 U.S.C. §§ 1681n(c) and 1681o(b)
Santander also contends that it is entitled to relief in the
form of attorney’s fees under 15 U.S.C. §§ 1681n(c) and 1681o(b)
because Plaintiff filed the Complaint “in bad faith or for purposes
of harassment.”
15 U.S.C. §§ 1681n(c), 1681o(b).
This contention
requires the Court to find that Plaintiff “filed an action that was
frivolous, unreasonable, or without foundation.”
Smith v. HM
Wallace, Inc., No. 08-22372-CIV, 2009 WL 3179539, at *2 (S.D. Fla.
Oct. 1, 2009) (unpublished); see also In re Countrywide Fin. Corp.
Customer Data Sec. Breach Litig., No. 3:08-MD-01998, 2010 WL
5147222, at *5 (W.D. Ky. Dec. 13, 2010) (unpublished) (citing
same).
“Bad faith is ‘not simply bad judgment or negligence, but
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implies the conscious doing of a wrong because of a dishonest
purpose or moral obliquity; . . . it contemplates a state of mind
affirmatively operating with furtive design or ill will.’” Shah v.
Collecto, Inc., No. Civ.A.2004-4059, 2005 WL 2216242, *14 (D. Md.
Sept. 12, 2005) (unpublished) (quoting Black’s Law Dictionary 139
(6th ed. 1990)); see also In re 1997 Grand Jury, 215 F.3d 430, 436
(4th Cir. 2000) (citing same bad faith definition in analysis of
sanctions related to criminal complaint filing).
Furthermore, this determination must focus on the plaintiff’s
mental state at the time of filing.
See Rogers v. Johnson-Norman,
514 F. Supp. 2d 50, 52 (D.D.C. 2007) (“It is not enough to show
that the ‘pleading, motion, or other paper’ in question ‘later
turned out to be baseless.’” (quoting Ryan v. Trans Union Corp.,
No. 99-216, 2001 WL 185182, at *6 (N.D. Ill. Feb. 26, 2001)
(unpublished))).
The moving party bears the burden to show
entitlement to fees.
See Eller v. Experian Info. Solutions, Inc.,
Civil Action No. 09-cv-00040-WJM-KMT, 2011 WL 3365955, at *18 (D.
Colo. May 17, 2011) (unpublished) (“It appears the burden is on the
party moving for fees under Sections 1681n or 1681o to demonstrate
that they are warranted.”); DeBusk v. Wachovia Bank, No. CV 060324-PHX-NVW,
2006
WL
3735963,
*4
(D.
Ariz.
Nov.
17,
2006)
(unpublished) (“It is the burden of the party moving for fees under
§ 1681n(c) to demonstrate that they are warranted.”).
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As grounds for the Court to find the required mens rea,
Santander
contends
[Plaintiff]’s
Complaint.
that
[a]ccount.
“[t]he
She
[a]ccount
knew
that
is
when
and
she
always
was
filed
the
She knows that she bought the [v]ehicle and that she
has continued making payments under the Contract (which she signed)
after receiving approval on the Credit Application (which she
signed).”
(Docket Entry 14 at 9.)
The Court should find these
inferences from the record insufficient to establish that Plaintiff
filed this action in bad faith or for the purpose of harassment,
rather than due to confusion or mistake.
Accordingly, to the
extent Santander requests relief under 15 U.S.C. §§ 1681n(c) and
1681o(b), the instant Motion should be denied.
Conclusion
On the record of this case, no reason exists to depart from
the general rule that Plaintiff’s failure to respond to Santander’s
instant Motion warrants the granting of summary judgment for
Santander. See M.D.N.C. R. 7.3(k). Furthermore, because Plaintiff
failed to rebut Santander’s evidentiary showing, the “undisputed
evidence indicates that [Santander] should win as a matter of law.”
Booz, Allen & Hamilton, 452 F.3d at 308.
record
lacks
sufficient
evidence
to
However, because the
support
a
finding
that
Plaintiff filed her Complaint “in bad faith or for purposes of
harassment,” the Court should deny Santander’s motion to the extent
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it seeks relief in the form of attorney’s fees under 15 U.S.C.
§§ 1681n(c) and 1681o(b).
IT IS THEREFORE RECOMMENDED that Santander Consumer USA,
Inc.’s Motion for Summary Judgment (Docket Entry 13) be GRANTED IN
PART and DENIED IN PART in that the Court should enter judgment as
a matter of law for Santander and should dismiss this action with
prejudice, but the Court should decline to award attorney’s fees to
Santander under 15 U.S.C. §§ 1681n(c) and 1681o(b).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 30, 2012
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