THOMAS v. BANK OF AMERICA, N.A.

Filing 22

MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE re 17 MOTION for Summary Judgment filed by BANK OF AMERICA, N.A. be be GRANTED IN PART and DENIED IN PART in that the Court should enter judgment as a matter of law for FIA and should dismiss this action with prejudice, but the Court should decline to award attorneys fees 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.
BANK OF AMERICA, N.A.,
Defendant.

1:11CV606

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 the Motion for Summary
Judgment (Docket Entry 17) of Defendant Bank of America, N.A. (more
properly referred to as FIA Card Services, N.A.) (“FIA”).

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 seq., against Bank of America, N.A. (more properly
referred

to

as

FIA).

(See

Docket

Entry

2.)

Plaintiff’s

allegations relate to a perceived failure on the part of FIA to
adequately investigate Plaintiff’s disputed ownership of certain
accounts and to refrain from reporting information related to said
accounts. (See Docket Entry 2, ¶¶ 7, 23.) Without identifying the

accounts in question or how ownership of these accounts was
disputed, 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
Defendant;

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.)

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FIA has now filed the instant motion for summary judgment
(Docket Entry 17) which moves the Court to find for FIA as a matter
of law (Docket Entry 18 at 1) and to award FIA “costs of suit” (id.
at 8).

The Clerk mailed Plaintiff a letter explaining that

Plaintiff had “the right to file a 20-page response in opposition
to [FIA’s instant Motion] . . . .”
letter

specifically

cautioned

(Docket Entry 21 at 1.)

Plaintiff

that

her

“failure

The
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 FIA’s instant Motion.

(See Docket

Entries dated Nov. 14, 2011, to present.)
Summary Judgment
Plaintiff’s case warrants a finding of summary judgment for
FIA both because of Plaintiff’s failure to respond to the instant
Motion and because there is no genuine issue of material fact and
FIA 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.

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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 FIA.
Entry 21 at 1.)

(See Docket

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, FIA 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
or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). 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
FIA specifically for violation of 15 U.S.C. § 1681s-2(b).

Section

1681s-2(b) pertains to the obligations of an entity in FIA’s role
when given notice of a dispute from a consumer reporting agency.
(See 15 U.S.C. § 1681s-2(b).)

However, in conjunction with its

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summary judgment motion, FIA has provided credible evidence showing
that it never received notice from a consumer reporting agency of
a dispute regarding Plaintiff’s ownership of any account and that
it therefore was under no obligation to take those steps outlined
in 15 U.S.C. § 1681s-2(b).

Specifically, in the form of the sworn

statements of its Vice President and Operations Manager (Docket
Entry 19) and its Vice President and Operations Consultant (Docket
Entry 20), FIA provides that:
•

Plaintiff opened two accounts which FIA serviced.

The first,

a Bank of America, N.A. credit card with account number ending
in 9103 (the “9103 Account”).

(Docket Entry 20, ¶ 3.)

The

second, an MBNA America Bank, N.A. credit card account with
account number ending in 3260 (the “3260 Account”).

(Id., ¶

8.)1
•

Plaintiff defaulted on both accounts, (id., ¶¶ 7, 10), and
both accounts were charged off as a loss to FIA and assigned
new account numbers ending in 9543 (the “9543 Account”) and
0800 (the “0800 Account”), respectively (id., ¶¶ 7, 13).

•

FIA received a consumer dispute notification with respect to
the 9543 Account submitted by an Isaac Earl Thomas (Docket
Entry 19, ¶ 4) and, after investigation, FIA determined Isaac

1

“In January 2006, Bank of America N.A. (USA) and MBNA America Bank, N.A.
merged. The resulting entity, FIA Card Services, N.A., continued to service both
the 9103 and 3260 Accounts.” (Docket Entry 20, ¶ 12.)

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Earl Thomas was not a responsible party for that account
(id.).
•

FIA received a consumer dispute notification with respect to
the 0800 Account submitted again by an Isaac Earl Thomas (id.,
¶ 6) and, after investigation, FIA determined Isaac Earl
Thomas was not a responsible party for that account (id.).

•

FIA never received a notification from a consumer reporting
agency of a dispute by Plaintiff with respect to either the
9543 Account or the 0800 Account.

(Id., ¶¶ 5, 7.)

Plaintiff, by not responding to the instant Motion, has
provided no evidence to rebut FIA’s showing.

Accordingly, because

the “undisputed evidence indicates that [FIA] should win as a
matter of law,” Booz, Allen & Hamilton, 452 F.3d at 308, FIA is
entitled to summary judgment.
Relief Under 15 U.S.C. §§ 1681n(c) and 1681o(b)
FIA also moves the Court for costs of suit. Although FIA does
not specify under what provision it seeks said costs, the Court
interprets it as a request under 15 U.S.C. §§ 1681n(c) and 1681o(b)
of the FCRA which allow the Court to award attorney’s fees upon a
finding that Plaintiff filed her 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

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(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 *4 (W.D. Ky. Dec. 13, 2010) (unpublished)
(citing

same).

“Bad

faith

is

‘not

simply

bad

judgment

or

negligence, but 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 06-

-7-

0324-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.”).
FIA has provided no basis for the Court to find the required
mens rea of Plaintiff.

Accordingly, to the extent FIA 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 FIA’s
instant Motion warrants the granting of summary judgment for FIA.
See M.D.N.C. R. 7.3(k).

Furthermore, because Plaintiff failed to

rebut FIA’s evidentiary showing, the “undisputed evidence indicates
that [FIA] should win as a matter of law.”
452 F.3d at 308.

Booz, Allen & Hamilton,

However, because the record lacks sufficient

evidence to support a finding that Plaintiff filed her Complaint
“in bad faith or for purposes of harassment,” the Court should
decline to award attorney’s fees to FIA under 15 U.S.C. §§ 1681n(c)
and 1681o(b).
IT IS THEREFORE RECOMMENDED that FIA’s Motion for Summary
Judgment (Docket Entry 17) be GRANTED IN PART and DENIED IN PART in
that the Court should enter judgment as a matter of law for FIA and
should dismiss this action with prejudice, but the Court should

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decline to award attorney’s fees 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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