Rosado-Sanchez v. Banco Santander Puerto Rico

Filing 149

ORDER granting 115 motion for summary judgment. This case is dismissed with prejudice. Final judgment to be entered. Signed by US Magistrate Judge Bruce J. McGiverin on July 24, 2019. (McGiverin, Bruce)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
PABLO ENRIQUE ROSADO-SANCHEZ,
Plaintiff,
Civil No. 17-2169 (BJM)

v.
BANCO SANTANDER PUERTO RICO,
Defendant.

OPINION AND ORDER
Plaintiff Pablo Enrique Rosado Sánchez (“Rosado”) brings suit against Banco
Santander Puerto Rico (“Santander”) under the Fair Credit Reporting Act (“FCRA”). 15
U.S.C. § 1681. Dkt. 2 at 1. Rosado alleges that Santander failed to properly report certain
payments to the large credit reporters, including Equifax, Experian, and Transunion in
violation of the FCRA’s requirement to fairly report his information. Dkt. 5-1 at 2; 15
U.S.C § 1681(b). Because of this inaccurate reporting Rosado’s credit score has fallen, and
he claims the lower score impedes his ability to provide for his family and take care of his
medical needs. Dkt. 2 at 3. Santander moved for summary judgment, claiming that there
were several uncontested facts that show that they accurately reported all of Rosado’s
payment information. Dkt. 115 at ¶¶ 1–12. Rosado opposed the motion claiming that it did
not address the allegedly unreported payments at issue in this case. Dkt. 118. Santander did
not reply. The case is before me on consent of the parties. Dkt. 92. For the reasons set forth
below, Santander’s motion is GRANTED.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “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.”
Fed. R. Civ. P. 56(a). A fact is material only if it “might affect the outcome of the suit
under the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and
“[a] ‘genuine’ issue is one that could be resolved in favor of either party.” Calero-Cerezo

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v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004). The court does not weigh the facts,
but instead ascertains whether the “evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Leary v. Dalton, 58 F.3d 748, 751 (1st Cir. 1995). Under
Rule 56(a), summary judgement is proper if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact.” Donate-Romero v. Colorado, 856 F.2d 384,
386 (1st Cir. 1988).
“[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
[evidence] . . . which it believes demonstrate the absence of a genuine issue of material
fact.” Crawford-El v. Britton, 523 U.S. 574, 600 n.22 (1998) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)); Fed. R. Civ. P. 56(c)(1). Once this threshold is met, the
burden shifts to the nonmoving party, who “must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). However, the court draws inferences and evaluates
facts “in the light most favorable to the nonmoving party,” Leary, 58 F.3d at 751, and an
evaluating court may not “superimpose [its] own ideas of probability and likelihood (no
matter how reasonable those ideas may be) upon the facts of the record.” Greenburg v. P.R.
Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987).
Nonetheless, summary judgment is appropriate where the nonmoving party rests
entirely upon “conclusory allegations, improbable inferences, and unsupported
speculation” on any essential element of the claim. Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

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BACKGROUND
The following facts are alleged in the parties’ various motions as well as in each
party’s respective Local Rule 56 submissions.1
Rosado is a forty-nine-year-old school teacher who currently works at Ricardo
Arroyo Laracuente School in Dorado, Puerto Rico. Dkt. 115-1 at 7. Rosado has two
accounts with Santander: a personal loan account and a MasterCard credit card account.
Id. at 8. From August 2014 to August 2015 Rosado had an undescribed discrimination issue
with his employer that resulted in him losing his salary for that year.2 Id. at 12. Because of
this loss in salary, Rosado was unable to make standard monthly minimum payments on
his Santander accounts between August 2015 and August 2016. Id. However, Rosado
claims that during this time he did make some payments on his accounts. Dkt. 115-1 at 17.
Rosado claims he resumed regular payments on August 29, 2016 and made them until May
26, 2017. Id. at 29. Rosado specifically alleges that Santander failed to inform the credit
bureaus of the payments Rosado made on his MasterCard account since January 12, 2017
and the payments he made on his personal loan since May 26, 2017. Id. at 33. Rosado
contends that this has resulted in other banks denying him and has deprived his family of
certain essential needs. Dkt. 115-1 at 39.

Local Rule 56 is designed to “relieve the district court of any responsibility to ferret
through the record to discern whether any material fact is genuinely in dispute.” CMI Capital
Market Inv. v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008). It requires a party moving for
summary judgment to accompany its motion with a brief statement of facts, set forth in numbered
paragraphs and supported by citations to the record, that the movant contends are both uncontested
and material. D.P.R. Civ. R. 56(b), (e). The opposing party must admit, deny, or qualify those facts,
also with record support, paragraph by paragraph. Id. at 56(c), (e). The opposing party may also
present, in a separate section, additional facts, set forth in separate numbered paragraphs. Id. 56(c).
When the moving party replies to the opposition to a motion for summary judgment, that reply
must include a statement of material facts limited to those submitted by the opposing party. D.P.R.
Civ. R. 56(d). While the “district court may forgive a party’s violation of a local rule,” litigants
ignore the Local Rule “at their peril.” Mariani-Colón v. Dep’t of Homeland Sec. ex rel. Chertoff,
511 F.3d 216, 219 (1st Cir. 2007).
1

2

Rosado has filed a complaint with the Equal Employment Opportunity Commission for
three types of discrimination regarding this incident. Dkt. 115-1 at 12.

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Rosado filed this complaint on September 1, 2017. Dkt. 2. Throughout the entirety
of this case, Rosado has acted pro se and in forma pauperis. Dkt. 19-1 at 1. The court
assigned pro bono counsel to Rosado, but Rosado disagreed with the appointment, citing
past issues with pro bono counsel and believing that the appointment would cause further
delays to the resolution of his case. Dkts. 14, 16, 19-1 at 1. Rosado appealed the order
appointing pro bono counsel to the First Circuit, stating that the order (which stayed the
proceedings for 30 days to allow appointed counsel sufficient time to prepare) constituted
a bad faith or unnecessary delay in violation of Rule 56(h). Dkts. 17 at 1, 20 at 2. The First
Circuit dismissed this appeal for lack of jurisdiction, stating that it only may rule on
interlocutory appeals that “conclusively determine the disputed question.” Dkt. 31 at 1
(citing U.S. Fid. & Guar. Co. v. Arch Ins. Co., 578 F.3d 45, 54 (1st Cir. 2009)). The
appointed pro bono attorney, Natalia Palmer-Cancel (“Palmer”) attempted numerous times
to contact Rosado pursuant to her obligations under Local Rule 83L. See Dkt. 30. Rosado
ignored all of Palmer’s attempts to set up appointments with him, and the court ultimately
allowed Palmer to be dismissed from the case. Id. at 2–3; Dkt. 35.
Rosado thus continued pro se; however, he failed to comply with several federal
rules by filing improper responses to Santander’s answer and demanding that the court
issue a final ruling prior to discovery. Dkt. 48. Due to Rosado’s difficulty in complying
with the court’s rules, the court found that “in the interest of justice and judicial economy,
[Rosado] should not litigate this case pro se” and once again appointed pro bono counsel
for Rosado. Id. The court named attorney Rodolfo Carrion-Vargas (“Carrion”) as Rosado’s
new pro bono counsel. Dkt. 52. Rosado once again rejected this appointment and reiterated
his right to continue this suit pro se. Dkt. 53 at 1. Carrion reached out to Rosado via certified
mail and email, but Rosado did not answer any of the communication attempts nor meet
with Carrion at any of the proposed times. Dkt. 61 at ¶ 6. When Carrion attempted to
withdraw himself from the case, the court held his request in abeyance and ordered Rosado

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to at least meet with Carrion to discuss the case as well as the complexity of federal
litigation in general. Dkt. 75 at 2; see Dkt. 61.
Following the appointment of Carrion, Rosado continued to file several motions
(presumably without Carrion’s assistance) in violation of both the Federal Rules of Civil
Procedure and the Local Rules of this district. See Dkts. 65, 68, 70, 76, 78, 79, 80, 81. The
court stated on three separate occasions that Rosado’s continued failure to comply with the
court’s rules will result in sanctions, including dismissal of his case with prejudice. Dkts.
73, 75, 83. On January 22, 2019, proceedings were held in which this court strongly
encouraged Rosado to settle his issues with Carrion and not continue pro se. Dkt. 91 at 1.
This recommendation fell on deaf ears, Rosado insisted that he continue this case without
representation, and this court dismissed Carrion from his duties as Rosado’s pro bono
counsel. Dkt. 99 at 2; Dkt. 106.
On April 23, 2019, Santander filed a motion for summary judgment, alleging that
Rosado failed to make payments on both of his accounts throughout 2015 and 2016. Dkt.
115 at ¶ 4. Santander claims they always reported Rosado’s accounts pursuant to the terms
and conditions of the original agreements. Id at ¶ 11. Rosado filed a handwritten opposition
to Santander’s motion, claiming that the motion was a “charlatan act” from the bank and
stating that they failed to report the two accounts with precision as of January 12, 2017 (for
the credit card) and May 26, 2017 (for the personal loan). Dkt. 118 ¶¶ 1–3. Rosado’s
opposition does not cite to the record to support this claim, nor does he respond individually
to each of Santander’s claims as required by Local Rule 56. See id.
DISCUSSION
The FCRA was passed by Congress in 1970 to “ensure fair and accurate credit
reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco
Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). The act details obligations for Credit
Reporting Agencies (“CRAs”) such as Experian and TransUnion, as well as “furnishers”
of information to the CRAs such as Santander in the case at hand. Under 15 U.S.C. §

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1681s–2, furnishers have two primary obligations. First, furnishers may not provide
inaccurate information to the CRAs. 15 U.S.C § 1681s–2(a)(1). Second, furnishers have
specific duties in the event of a dispute over furnished information. 15 U.S.C. § 1681s–
2(b). Congress has explicitly prohibited private suits over the first obligation. Chiang v.
Verizon New England Inc., 595 F.3d 26, 35 (1st Cir. 2010); see also 15 U.S.C. § 1681s–
2(c)(1). Therefore, in order to bring a private suit against a furnisher under the FCRA, a
plaintiff must show that the furnisher did not adhere to its duties upon being properly made
aware of a dispute over the information reported. See id.
A consumer wishing to bring an FCRA claim against a furnisher must first notify
the CRAs of an alleged inaccuracy in the furnisher’s report. Barrepski v. Capital One Bank,
439 F. App'x 11, 12 (1st Cir. 2011). Next, the CRA will inform the furnisher, at which point
the furnisher will be obligated to begin an investigation. Id. The furnisher’s obligation to
investigate and correct their error “begins ONLY upon the furnisher's receipt of notice
FROM THE CRA; notice directly from the consumer is not enough.” Id. (emphasis
original). Therefore, in order to prevail on his FCRA claim, Rosado must show that he
followed the proper complaint channels under § 1681s–2(b) and that Santander has failed
to carry out its statutory obligations under the FCRA. See Chiang, 595 F.3d at 35.
Santander’s motion for summary judgment states twelve uncontested facts which,
if uncontroverted, would show that there is no genuine dispute as to any material fact and
thus entitle Santander to receive summary judgment. Fed. R. Civ. P. 56(a); see Dkt. 115
¶¶ 1–12. Santander’s uncontested facts are as follows:
1. Plaintiff, Mr. Pablo Enrique Rosado Sánchez, was born on July 14, 1969,
therefore he is 49 years old. (See deposition transcript, exhibit 1, page 6).
2. Plaintiff was granted a Bachelor Degree from “Unversidad del Sagrado
Corazón”. (See exhibit 1, page 7).
3. Plaintiff has 2 credit facilities provided by BS which are:
a. Personal Loan number XXXXXX7310

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b. MasterCard credit card number XXXX XXXX XXXX 6454. (See
exhibit 1, page 8).
4. During 2014-2015 [Rosado] had certain problem with his employer
which caused the filing of charges before the Equal Employment
Opportunity Commission and a lawsuit before the U.S. District Court for
the same time Plaintiff did not received salary which caused that the
payments to the credit card and the personal loan were interrupted. (See
exhibit 1, page 11)
5. The interruption of payments for the personal loan and the credit card
was from August 2015 to the end of August 2016. (See exhibit 1, page 12).
6. Regarding the credit card account Plaintiff entered on January 31, 2017
into a payment plan agreement for the payment of $6,117.17 of principal
owed in 48 installments. (See exhibit 1, to Plaintiff deposition).
7. In regard to the payment of a credit card the credit card agreement
requires that a monthly minimum payment is made. (See exhibit 1, page
24).
8. In regard to the personal loan the payment terms were 84 monthly
installments of $265.08. (See exhibit 1, pages 24-25).
9. the statements of the credit card shows that [Rosado] failed to make
payments for: April, May, June, July, and August 2016. (see exhibit 2)
10. The payment history of the personal loan shows that [Rosado] failed to
make payments for: November and December 2015 and January, February,
March, April, May, and June 2016. (see exhibit 3)
11. Banco Santander has always reported [Rosado]’s accounts pursuant to
the terms and conditions of the loan and the credit card original agreements.
See exhibit 4, Sworn Statement.
12. Banco Santander has been reducing the owed balance on Plaintiff
accounts pursuant for the payments received from Plaintiff. (See exhibit 4,
sworn statement).
Dkt. 115 at ¶¶ 1–12. Rosado’s opposition to Santander’s motion for summary judgment
does not reject, deny, qualify, or even address facts 1–10 or fact 12. See generally Dkt. 118.
Therefore, this court will accept these facts as uncontroverted. See D.P.R.R 56(e).

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Rosado did, in a way, address fact 11, which alleges that Santander has always
reported Rosado’s accounts pursuant to the agreement. Dkt. 115 at ¶ 11. Santander
supported this document by citing to an affidavit by a Santander supervisor affirming that
they have accurately reported Rosado’s payments to the credit reporting agencies. Dkt.
115-4 at 1; Fed. R. Civ. P. 56(c)(1)(A). In his opposition, Rosado claims that Santander
failed, and still fails, to accurately report his payments in violation of the FCRA. Dkt. 118
at ¶ 2. However, Rosado does not specifically refer to any of Santander’s uncontested facts.
D.P.R.R 56(c); see Dkt. 118. Rosado also fails to cite to any material in the record to support
his claim that Santander is failing in its duty to fairly and accurately report his payments to
the credit bureaus. D.P.R.R 56(e); see Dkt. 118.
The entire purpose of Local Rule 56’s citation requirement is to “require the parties
to focus the district court's attention on what is, and what is not, genuinely controverted . .
. . Otherwise, the parties would improperly shift the burden of organizing the evidence
presented in a given case to the district court.” Mariani-Colon, 511 F.3d at 219. Throughout
this case’s nearly two-year lifespan, Rosado has submitted so many motions that this court
ordered him to stop. Dkt. 91 (“The Court ordered Plaintiff not to file any additional motions
in the docket”). Many of these motions contained multiple attachments, including website
screenshots, handwritten notes by Rosado, and e-mail communications to name a few. See
e.g., Dkts. 2, 84, 88. Attempting to find evidence to adequately support Rosado’s claim of
improper reporting would force this court to “grope unaided for factual needles in a
documentary haystack.” Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st
Cir. 2007).
Rosado’s position as a pro se litigant does grant him some leniency in his
submissions. For example, complaints filed pro se “however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, this more liberal standard “cannot be taken to mean that pro se complaints are

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held to no standard at all.” Green v. Massachusetts, 108 F.R.D. 217, 218 (D. Mass. 1985).
A document which completely flouts the rules of civil procedure is subject to dismissal
regardless of its pro se origins. See id.
Throughout the entirety of this case, Rosado has had numerous difficulties
comporting with both the Federal Rules of Civil Procedure and the Local Rules of the
District of Puerto Rico. See Dkts. 48, 73, 75, 83. The court warned Rosado several times
that if he did not begin to adhere to the court’s rules, he could be subject to sanctions up to
and including dismissal of his case. Dkts. 73, 75, 83 (“Plaintiff must comply with the
Federal Rules of Civil Procedure as well as this court’s local rules; repeated noncompliance with these and other rules shall result in the imposition of sanctions, including
dismissal with prejudice of Plaintiff’s case”) (All-caps removed). The court provided
Rosado with pro bono counsel on two separate occasions. See Dkts. 16, 48. Yet Rosado
rejected counsel both times and elected to continue litigating pro se, despite being made
explicitly aware of his difficulties in navigating the complexities of federal litigation. Dkts.
18, 53, 75 at 2.
Even a cursory glance at this case’s history shows that Rosado did not undertake
the necessary actions to bring a claim against a furnisher of credit information under the
FCRA. While Rosado did write to the CRAs regarding his issues, Rosado did not proffer
any evidence that the CRAs have notified Santander of the dispute. Barrepski, 439 F. App'x
at 12; see Dkts. 2, 7. In fact, at no point in his complaint does Rosado even mention the
specific statute which creates a cause of action against furnishers of inaccurate payment
information. Rosado’s complaint focuses exclusively on the idea that Santander is violating
the FCRA by reporting inaccurate information to the CRAs. Dkt. 2 at 3. However, this
alleged inaccurate reporting is not enough to grant Rosado a private right of action, and his
complaint and subsequent motions do nothing to show an actionable claim against
Santander. Chiang, 595 F.3d at 35. Even assuming, arguendo, that the record supports an
allegation that Santander was notified by the CRAs of Rosado’s complaints, Rosado has

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not met his burden of demonstrating a genuine issue of fact that Santander’s investigation
was inadequate.
Therefore, pursuant to Local Rule 56(e), the claims that Rosado alleges in his
opposition statement are disregarded for lack of specific citation to the record. Dkt. 118;
D.P.R.R. 56(e). Santander’s claims of proper reporting to the credit bureaus, as they are
supported via affidavit and uncontroverted by Rosado’s opposition, are admitted pursuant
to Local Rule 56(e). Dkt. 115 at ¶ 11; Fed. R. Civ. P. 56(c)(1)(A); D.P.R.R. 56(e); see Dkt.
118. This court thus deems admitted that Rosado failed to make numerous payments for
both his MasterCard and personal loan accounts with Santander and that Santander
properly reported Rosado’s payments to the CRAs. Dkt. 115 at ¶¶ 4, 11. In light of these
admissions, it is clear that he has no grounds to bring a private suit against Santander for
FCRA violations. Chiang, 595 F.3d at 35; See also 15 U.S.C. 1681s–2(c)(1). Moreover,
Rosado presents no reason to believe that Santander acted improperly in its reporting of his
payments to the CRAs. See Dkt. 118. Since Rosado failed to both establish a cause of action
and controvert Santander’s evidence showing proper reporting, summary judgment is
warranted in this case.
CONCLUSION
For the foregoing reasons, Banco Santander Puerto Rico’s motion for summary
judgment is GRANTED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 24th day of July, 2019.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge