Lopez v. Chase Bank USA, N.A.

Filing 27

Memorandum of Opinion and Order: Defendant Chase Bank USA, N.A.'s Motion for Summary Judgment is granted. Count Two is dismissed. Judge Patricia A. Gaughan on 5/24/16. (LC,S) re 22

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Luther Lopez,
Plaintiff,
Vs.
JP Morgan Chase Bank,
National Association,
Defendant.

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CASE NO. 1:15 CV 1970
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Intr oduction
This matter is before the Court upon defendant Chase Bank USA, N.A.’s Motion for
Summary Judgment (Doc. 22). This case alleges a violation of the Fair Credit Reporting Act
(FCRA), 15 U.S.C. § 1681 et seq. For the following reasons, defendant’s motion is
GRANTED.
Facts
Plaintiff Luther Lopez, proceeding pro se, filed an Amended Complaint against
defendants Chase Bank USA, N.A1 (hereafter, Chase) and Experian Information Solutions

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This defendant was originally improperly named as JP Morgan Chase Bank.
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asserting two claims. The facts are taken from the declaration of David Rivera, submitted by
Chase. Plaintiff submits no evidence in support of his opposition brief. Rivera states the
following. He is the Operations Team Leader for Chase Bankcard Services. On October 31,
2013, Chase received an internet application, in the name of Luther Lopez, for a credit card
issued by Chase. The application contained the name, address, Social Security number, home
phone number, and email address of plaintiff. Based on the receipt of the application which
contained the personal identifying information, Chase obtained a consumer credit report for
plaintiff for the purpose of making a decision on whether to extend credit. Chase ultimately
declined to issue a credit card to plaintiff. Plaintiff was notified of the decision at the address
reflected on the credit report. On March 31, 2015, plaintiff sent a letter to Chase informing it
of an allegedly unauthorized inquiry by Chase on his credit file. On April 27, 2015, Chase
sent plaintiff a letter asking for additional information relating to plaintiff’s concern, but
Chase has no record of receiving a response to the letter. Chase has no record of receiving any
notice or communication from Experion that plaintiff disputed the credit inquiry. (Rivera
decl.)
The Amended Complaint sets forth two claims. Count One alleges that Experion
violated the FCRA by failing to “notify and/or follow up on the removal” of an unauthorized
and fraudulent inquiry by Chase after being informed of such by plaintiff. Experion also
failed to conduct a proper investigation after being informed of the fraudulent inquiry and/or
failing to remove it from plaintiff’s credit file when Chase did not do so. Count Two alleges
that Chase violated the FCRA, 15 U.S.C. § 1681s-2, by failing to remove “an unauthorized
and fraudulent inquiry” on plaintiff’s credit file upon being properly notified by Experion.

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This matter is now before the Court upon Chase’s Motion for Summary Judgment.
Standard of Review
Summary Judgment is appropriate when no genuine issues of material fact exist and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600,
8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any such genuine
issues of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits,” if any, which it believes demonstrates
the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its
resolution will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986).
Accordingly, the nonmoving party must present “significant probative evidence” to
demonstrate that “there is [more than] some metaphysical doubt as to the material facts.”
Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993). The nonmoving party may
not simply rely on its pleading, but must “produce evidence that results in a conflict of
material fact to be solved by a jury.” Cox v. Kentucky Dep’t. of Transp., 53 F.3d 146, 150 (6th
Cir. 1995).
The evidence, all facts, and any inferences that may permissibly be drawn from the
facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image
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Technical Servs., Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla
of evidence in support of the plaintiff's position will be insufficient; there must be evidence on
which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence is
“merely colorable” and not “significantly probative,” the court may decide the legal issue and
grant summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted).
Discussion
Chase moves for summary judgment on the claim asserted against it. For the
following reasons, summary judgment is warranted.
The Complaint alleges that Chase violated 15 U.S.C. § 1681s-2 when it was “properly
notified by... Experion concerning an unauthorized and fraudulent inquiry on the plaintiff’s
credit file, and failed to remove such.” The FCRA creates a private right of action to enforce
§ 1681s-2(b). Under that section, certain duties are imposed on furnishers of consumer
information when receiving notice of a dispute by a credit reporting agency. Boggio v. USAA
Federal Savings Bank, 696 F.3d 611 (6th Cir. 2012). In order to assert a cause of action
against a furnisher for violating the FCRA, the furnisher must have received notice of the
dispute from a credit reporting agency. Id. at 615.
Irrespective of whether Chase was notified by Experion, the evidence shows that
Chase performed the initial credit inquiry for a permissible purpose under 15 U.S.C. §
1681b(a)(3)(A). That section states that it is a permissible purpose to furnish a consumer

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report “in connection with a credit transaction involving the consumer on whom the
information is to be furnished and involving the extension of credit.” Based on the
uncontroverted evidence, Chase received a credit card application in plaintiff’s name and
containing plaintiff’s personal identifying information. Chase then obtained a copy of
plaintiff’s credit report for the purpose of deciding whether to extend credit in response to the
application. (Rivera decl.) Based on the credit card application, Chase was authorized to
obtain plaintiff’s credit report for the purpose of deciding whether to extend credit. In his
brief, plaintiff does not dispute that Chase’s credit inquiry was for a permissible purpose
under the statute. Thus, plaintiff has no claim under the FCRA based on a “dispute”
concerning a permissible inquiry.
Finally, as recognized by Rivera, plaintiff contacted Chase regarding the allegedly
fraudulent inquiry. However, there is no private right of action under the FCRA based on a
consumer’s direct dispute with a furnisher of information. Brown v. Wal Mart Stores, Inc.,
507 F. Appx. 543 (6th Cir.2012) (Directly contacting the furnisher of credit information does
not actuate the furnisher's obligation to investigate a complaint.) See also 45 Am. Jur. Proof
of Facts 3d 221 (1998) (citing 15 U.S.C. § 1681s 2(a); Alcala v. Popular Auto, Inc., 2011 WL
6056725 (D.P.R. 2011) (“Although a consumer may dispute credit information directly to a
furnisher of information to a credit reporting agency (CRA), the consumer has no private right
of action, under the FCRA, if the furnisher does not reasonably investigate the consumer's
claim after direct notification.”)

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For these reasons, defendant Chase is entitled to summary judgment.2
Conclusion
For the foregoing reasons, defendant Chase Bank USA, N.A.’s Motion for Summary
Judgment is granted. Count Two is dismissed.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 5/24/16

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Plaintiff contends that summary judgment is premature because he has not
completed discovery as to Experion. However, further discovery will not alter the
Court’s conclusions as to whether Chase’s credit inquiry was for a permissible
purpose or whether plaintiff has a claim based on a direct dispute with Chase.
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