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Myrick v. Equifax Information Services, LLC

United States District Court, E.D. North Carolina, Western Division

August 3, 2017

GENE MYRICK, Plaintiff,


          W. Earl Britt Senior U.S. District Judge

         This matter is before the court on the 21 October 2016 motion for summary judgment filed by defendant Equifax Information Services, LLC (“Equifax”). (DE # 23.) Plaintiff Gene Myrick filed a response in opposition on 22 December 2016, (DE # 27), to which Equifax replied on 17 January 2017, (DE # 29). Also before the court is the parties' joint motion for continuance of the trial date. (DE # 34.) The issues raised have been fully briefed and are now ripe for disposition.

         I. BACKGROUND

         This case arises from a dispute about information that Equifax, a consumer reporting agency (“CRA”), maintained and reported with respect to an account plaintiff held with First Federal Bank (“FFB”). On 12 October 2009, plaintiff filed a Chapter 13 bankruptcy petition with the bankruptcy court for this district. See Case No. 09-08901 (Bankr. E.D. N.C. Oct. 12, 2009). On 9 September 2011, the bankruptcy court entered an order granting plaintiff a discharge, which plaintiff claims included any debt on the FFB account. (See Smith Decl., DE # 25-1, ¶¶ 33-34; see also id., Ex. 1, at 12-13.)

         In July 2014, plaintiff obtained a copy of his Equifax credit report, which did not reflect the discharge status of all accounts discharged in his Chapter 13 bankruptcy. (Myrick Dep., DE # 25-1, at 17.) With respect to the FFB account, plaintiff alleges that the trade line on this credit report showed an open balance of $41, 603 with a past due amount of $2, 000. (Compl., DE # 1, ¶¶ 25-26.) Plaintiff also claims that Equifax reported the FFB account as 90 days past due in September 2014 and 120 days past due in November 2014. (Id. ¶¶ 27, 29.)

         On 3 November 2014, plaintiff submitted a dispute through Equifax's website disputing the reporting of the FFB account on the basis that the account had been discharged by the bankruptcy court. (Smith Decl., DE # 25-1, ¶ 33.) After receiving plaintiff's dispute, Equifax sent an Automated Consumer Dispute Verification (“ACDV”) to FFB to verify the account information. (Id.) FFB responded to the ACDV by confirming that plaintiff had an open account with a scheduled payment amount. (Id.) On 25 November 2014, Equifax informed plaintiff that it had verified the account information was being reported correctly. (Id.)

         Several months later, on 12 February 2015, Equifax received a dispute letter from plaintiff notifying it of the bankruptcy discharge and disputing the balances on accounts “that were discharged through [his] bankruptcy.” (Id. ¶ 34.) Attached to the dispute letter was a copy of the bankruptcy court's discharge order. (Id.) The discharge order did not identify the particular debts that were discharged, and included a statement that generally explained that some debts are discharged and some debts are not discharged. (See Smith Decl., Ex. 1, DE # 25-1, at 12-13.) Upon receiving plaintiff's letter, Equifax sent a consumer communication to plaintiff instructing him to: “Please be specific with your concerns by listing the account names, numbers and the nature of the dispute.” (Smith Decl., DE # 25-1, ¶ 35.) Plaintiff did not follow-up and provide the requested information. (Id.)

         On 22 October 2015, plaintiff brought this action against both FFB and Equifax, alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., and the North Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen. Stat. § 75-1.1. (DE # 1.) Plaintiff seeks actual, statutory, and punitive damages, as well as attorney's fees. (Id. at 14-15.) He also seeks “[a]n order directing [Equifax] send to all persons and entities to whom they have reported Plaintiff's inaccurate information within the last three years Plaintiff's updated and corrected credit report information.” (Id. at 15.)

         Shortly after plaintiff filed this lawsuit, FFB corrected the information regarding the discharge of plaintiff's account in December 2015. (Myrick Dep., DE # 25-1, at 19; Smith Decl., DE # 25-1, ¶ 36.) On 24 May 2016, plaintiff and FFB stipulated to the dismissal with prejudice of all claims against FFB. (DE # 22.) Equifax filed the instant motion for summary judgment on 21 October 2016. (DE # 23.)


         Summary judgment is appropriate where “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 genuine factual issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether an issue of fact exists, the court must view the evidence and inferences drawn therefrom in the light most favorable to the nonmoving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991).

         The party seeking summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Specifically, the moving party bears the burden of identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” which the moving party believes demonstrate an absence of any genuine issue of material fact. Id. at 323. Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate with specific evidence that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The nonmoving party may not rest on the allegations or denials in his complaint or other pleadings, but must come forward with affidavits or other verified evidence showing that there is a genuine issue for trial. Celotex, 477 U.S. at 322; see also Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish an essential element of the party's claim on which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322.

         III. ANALYSIS

         A. FCRA Claims

         The FCRA is a statutory scheme designed to regulate the consumer reporting industry and ensure fair and accurate credit reporting. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). “[The] FCRA does not impose strict liability on consumer reporting agencies for inaccuracies in reporting.” Dalton v. Capital Associated Indus., Inc., 257 F.3d 409, 417 (4th Cir. 2001). Instead, it creates a private right of action against CRAs for the negligent or willful violation of any duty imposed by the FCRA. 15 U.S.C. § 1681o (negligent violations);15 U.S.C. § 1681n (willful violations). A consumer aggrieved by a creditor's violation of the FCRA may recover actual damages caused by negligent violations of the statute, and both actual and punitive damages for willful noncompliance. Sloane v. Equifax Info. Servs., LLC, 510 F.3d 495, 500 (4th Cir. 2007) (citing 15 U.S.C. §§ 1681n(a)(3), 1681o(a)(2)).

         In his complaint, plaintiff alleges that Equifax willfully and negligently violated two separate provisions of the FCRA: 15 U.S.C. § 1681e(b) and 15 U.S.C. § 1681i(a). (Compl., DE # 1, ¶¶ 57-82, 83-94.) Plaintiff claims that Equifax's continued reporting of erroneous information caused him “economic loss due to denial of mortgage refinancing, loss of opportunity to obtain credit, damage to reputation, [and] expenditure of considerable time and out-of-pocket expenses[.]” (Id. ¶¶ 79, 93.) He also claims damages for emotional and mental distress, in the form of worry, fear, frustration, and embarrassment. (Id.)

         1. Section 1681e(b)

         Plaintiff claims that Equifax negligently and willfully violated 15 U.S.C. § 1681e(b) by issuing an inaccurate credit report that did not reflect that the debt on the FFB account was discharged. (Compl., DE # 1, ¶¶ 57-82). “[Section] 1681e(b) governs the original compilation of information for a credit report.” Alston v. Equifax Info. Servs., LLC, No. TDC-13-1230, 2016 WL 5231708, * 6 (D. Md. Sept. 21, 2016). This provision requires that “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy” of its reports. 15 U.S.C. § 1681e(b). For a plaintiff's § 1681e(b) claim to survive summary judgment, he must present evidence tending to show: ...

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