Agosta v. Inovision, Inc., CIVIL ACTION NO. 02-806 (E.D. Pa. 12/__/2003)
| Decision Date | 01 December 2003 |
| Docket Number | CIVIL ACTION NO. 02-806. |
| Parties | MARIA AGOSTA, Plaintiff, v. INOVISION, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Presently before this Court are Defendant InoVision, Inc.'s Motion for Summary Judgment (Def.'s Mot. for Summ. J., Doc. No. 26) filed on April 14, 2003, Plaintiffs Opposition to Defendant InoVision Inc.'s Motion for Summary Judgment (Pl.'s Opp., Doc. No. 31) filed on May 12, 2003, and the Reply to Plaintiffs Opposition to Defendant's Motion for Summary Judgment filed by Defendant Ino Vision, Inc. on May 30, 2003. Also before this Court are the Motion for Partial Summary Judgment (Pl.'s Mot. for Summ. J., Doc. No. 27) filed by Plaintiff on April 14, 2003, the Opposition to Plaintiffs Motion for Partial Summary Judgment (Def.'s Opp., Doc. No. 32) filed by Defendant InoVision, Inc. on May 14, 2003, and the Reply to Defendant InoVision's Opposition to Plaintiffs Motion for Partial Summary Judgment (Pl.'s Reply, Doc. No. 38) filed by Plaintiff on May 30, 3002.
On February 15, 2002, Maria Agosta ("Plaintiff") filed suit against InoVision, Inc. ("InoVision"), Equifax Credit Information, and Equifax, Inc. (together, "Defendants") for alleged violations of the Fair Credit Reporting Act. 15 U.S.C. § 1681, et seq ("FCRA"), the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), and common law defamation, negligence and invasion of privacy/false light, seeking recovery for "serious financial losses, credit and dignitary harm and emotional distress damages." See Pl.'s Mot. for Summ. J. at 5. The Equifax defendants settled with Plaintiff and the case against those defendants was dismissed by praecipe on February 13, 2003. See Pl.'s Praecipe, Doc. No. 24. Plaintiffs remaining claims against InoVision allege that though Plaintiff disputed the account, InoVision inaccurately reported a charged off PECO utility account for two years after Plaintiff no longer resided at the apartment that had accumulated $1200 of unpaid electricity bills. See Pl.'s Mot. for Summ. J. at 5.
Therefore, Plaintiff claims that InoVision violated the FDCPA and the FCRA by reporting the commencement of delinquency incorrectly and by failing to indicate that Plaintiff disputed the accuracy of the report. See Id. at 2. According to Plaintiff's deposition testimony, shortly before vacating the apartment on 626 So. 10th Street in February 1994, she contacted PECO to terminate the account. See Pl.'s Mot. for Summ. J. at Ex. B, Agosta Dep. at 61-63. However, PECO records indicate that Agosta's verbal request for termination on February 14, 1994 was followed by a visit to 626 So. 10th Street by PECO technicians on February 16, 2004 at which time Plaintiff dismissed the technicians, expressing a desire for service to continue at that address. See Def. Mot. for Summ. J., Ex. D. Until June 1996 when it terminated the account and discontinued service, PECO continued to provide electricity and send billing statements to 626 So. 10th Street. Id. NCO Financial Systems, Inc., an independent collection agency, ("NCO") then reported the delinquency on PECO's behalf. See Def. Mot. for Summ. J. at Ex. F, Jenkins Dep. at 76-80; Ex. H, Maguire Aff. InoVision purchased the debt from PECO on March 24, 1998; as part of the transfer, PECO warranted the validity of the debt. See Def. Mot. for Summ. J., Ex. C. In 2000, when Sovereign Bank denied her application for a mortgage, Plaintiff discovered that InoVision was furnishing information of alleged delinquency on this utility service account. See Pl.'s Mot. for Summ. J. at Ex. B, Agosta Dep. at 42-48. Chase and Capital One also denied credit card accounts to Plaintiff after reviewing her credit report which she claims contained only one adverse entry, the PECO account.1 See Pl.'s Mot. for Summ. J., Ex. F. Plaintiff disputed the inaccuracy of the negative data with Equifax and other credit reporting agencies, who submitted Consumer Dispute Verification forms ("CDV") to InoVision through its collection agency, NCO in October 2001. See Def. Mot. for Summ. J. at 4. InoVision claims that NCO later conducted an investigation as to the validity of the debt the findings of which InoVision communicated to Plaintiff. See Def. Mot. for Summ. J. at Ex. F, Jenkins Dep. at 71.
Plaintiff argues that the commencement of delinquency began in February 1994, thirty days after the last payment Plaintiff made on the account. She further argues that because the information did not appear on Plaintiffs credit report until June 1996, the derogatory information appeared on her credit report after September 2001, in excess of the seven-year (plus 180 day) period allowable under the FCRA. 15 U.S.C. § 1681c(a)-(c). InoVision argues that in accordance with utility industry practice and Pennsylvania Utility Commission ("PUC") regulations, the "charge-off/shut-off" date qualifies as the first delinquency because it marks the date that service can be terminated regardless of payment history on the account. See Def. Mot. for Summ. J. at 5. Plaintiff concludes that InoVision's own admissions via deposition testimony of its corporate representative, Amelie Jenkins, reveal no issue of material fact that would preclude judgment as a matter of law due to the inaccurate, untimely, and defamatory nature of the reported information in violation of FDCPA § 1692e(8) and FCRA § 1681s-2(b). See generally Pl.'s Mot. for Summ. J at 3-7. InoVision argues that only when a furnisher fails to take action after receiving information from a credit reporting agency are the duties created by FCRA § 1681s-2(b) triggered, that it appropriately concluded that the information it reported was accurate, timely, and that a reinvestigation would yield the same conclusion. Finally, InoVision argues that Plaintiff fails to establish a prima facie case under the least sophisticated consumer test that it violated the FDCPA and that her claims under the FDCPA are time barred by the statute of limitations. See generally Def.'s Mot. for Summ. J. at 11-20. In the alternative, InoVision contends that were such a cause of action available, Plaintiffs state law claims are preempted by the FCRA Id.
Summary judgment is appropriate when "there is no genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986). In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The moving party bears the burden of showing that the record discloses no genuine issues as to any material fact and that he or she is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings to set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). There is a genuine issue for trial "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 249. "Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Williams v. Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).
Prompted by concerns over abuses in the credit reporting industry, Congress enacted the FCRA to "insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and respect for the consumer's right to privacy." 15 U.S.C. § 1681(a)(4) (2003); Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995). Consumer reporting agencies and credit furnishers play crucial roles in collecting and transmitting consumer credit information; inaccurate information can visit detrimental effects upon both the individual customer and the national economy. Philbin v. Trans Union Corp. 101 F.3d 957, 962 (3d Cir. 1996) citing 15 U.S.C. § 1681(a)(1), (3).
Defendant argues that because no private right of action exists for Plaintiff against InoVision, a furnisher of information, Plaintiffs allegations that Defendant failed to meet its investigative duties under § 1681s-2(b) of the FCRA after it received notice from a credit reporting agency must be dismissed. See Def.'s Reply at 5. In reaching this conclusion, Defendant points to Jaramillo v. Experian Information Solutions. Inc. 155 F. Supp.2d 356 (E.D.Pa. 2001) in which the Court observes that Congressional intent in this regard is unclear. See Def. Mot. for Summ. J. at 12. Plaintiff responds by pointing specifically to Sheffer v. Experian Information Solutions. Inc., 2003 WL 403171, *2 (E.D.Pa. Feb. 14, 2003) which holds that a private right of action does exist against a furnisher of information. See Pl.'s Reply at 6, Ex. C. We agree.
While courts have reached varied conclusions as to whether a consumer has a private right of action against a credit furnisher, a majority of courts that have addressed this issue has "effectively recognized Congress' obvious intent [to] create a private cause of action through § 1681s-2." Sheffer v. Experian Information Solutions. Inc., 249 F. Supp.2d 560, 562 (E.D.Pa. 2003) citing Vazquez-Garcia v. Trans Union De P.R., Inc., 222 F. Supp.2d 150, 155 (D.P.R. 2002); see also Nelson v. Chase...
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