Apodaca v. Discover Financial Services

• Decision Date: 02 March 2006
• Docket Number: No. CIV 04-0717 MCA/WDS.,CIV 04-0717 MCA/WDS.
• Parties: Victoria APODACA, Plaintiff, v. DISCOVER FINANCIAL SERVICES, and Equifax Information Services LLC., Defendants.
• Court: U.S. District Court — District of New Mexico

417 F.Supp.2d 1220

Victoria APODACA, Plaintiff, v. DISCOVER FINANCIAL SERVICES, and Equifax Information Services LLC., Defendants.

No. CIV 04-0717 MCA/WDS.

United States District Court, D. New Mexico.

March 2, 2006.

COPYRIGHT MATERIAL OMITTED

Rob Treinen, Richard N. Feferman, Feferman & Warren, Albuquerque, NM, for Plaintiff.

Jason C. Bousliman, William R. Keleher, Modrall Sperling Roehl Harris & Sisk P.A., Patricia G. Williams, Wiggins, Williams & Wiggin, Albuquerque, NM, Camille Averett, Brenton S. Bean, Cindy Hanson, Kilpatrick Stockton LLP, Atlanta, GA, for Defendants.

MEMORANDUM OPINION AND ORDER

ARMIJO, District Judge.

THIS MATTER comes before the Court on Defendant Equifax's Motion for Partial Summary Judgment [Doc. 173] filed on December 7, 2005. Having considered the parties' submissions, the relevant law, and being fully advised in the premises, the Court finds that there are genuine issues of material fact which preclude summary judgment as to the issues of willfulness, punitive damages, denial of a Wells Fargo credit card, and Plaintiffs state-law claim under the New Mexico Credit Bureaus Act. The Court further finds that Defendant's motion is moot as to the denial of interest-free financing at the "Unpainted Furniture" store, because Plaintiff has withdrawn that aspect of her claims. Accordingly, Defendant's motion for partial summary judgment is denied.

I. BACKGROUND

On June 25, 2004, Plaintiff Victoria Apodaca filed this civil action against Defendants Discover Financial Services (Discover) and Equifax Information Services LLC (Equifax) alleging violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681i and 1681e, and the New Mexico Credit Bureaus Act, N.M. Stat. Ann. §§ 56-3-1 to 56-3-8 (Michie 2004). [Doc. 1.] Plaintiff subsequently reached a settlement with Discover [Doc. 100], and Equifax filed a motion for partial summary judgment on December 7, 2005. [Doc. 173.] Viewed in the light most favorable to Plaintiff, the undisputed facts and evidence of record relevant to Equifax's motion can be summarized as follows.

Plaintiffs Complaint arises from a dispute over the accuracy or applicability of information appearing on credit reports generated by Equifax. This dispute began when Plaintiff sent a letter to Equifax dated June 26, 2003, stating that information regarding a different person with a similar name and social security number appeared on her credit report. Plaintiffs letter identified the other person's name as "Victoria Lopez Apodaca" with a social security number ending in "2649." [Ex. 14 to Doc. 183; Doc. 175.] This information was detrimental to Plaintiff because the other person appearing on her credit report had filed for bankruptcy and had several accounts (including a Discover credit card) that were reported as past due or discharged in bankruptcy. [Ex. 2 to Doc. 183.]

Equifax did not resolve the dispute to Plaintiffs satisfaction. Consequently, Plaintiff made several other inquiries and requests to Equifax. On August 12, 2003, Plaintiff sent a written request to Equifax personnel via facsimile stating as follows:

I am Faxing the petition and bankruptcy record of Victoria Lopez Apodaca [Social Security Number redacted]. Hopefully this will take care of my credit report that I am not this Victoria Lopez Apodaca. I am Victoria Apodaca [Social Security Number redacted.] Please remove this from my credit file ASAP. As I have stated in my last 3 letters to Equifax this other person is making it difficult for me to purchase a home, that were suppose to be moving into Friday Aug. 15th.

Sonya, I have been trying to clear up my credit file with Equifax since May. I have send in letters, verifications (drivers license, pay stubs, social security number etc.) and this matter still isn't cleared up. I am hoping you can take care of this matter ASAP. Please give me a call at [telephone number redacted] when you have received this fax and have cleared it from my file. The underwriter for the home is just waiting to have this cleared, so we can sign the paperwork and close the purchase of our home by this Friday. Thank you Sonya!

[Ex. 6 to Doc. 183.] Plaintiff sent copies of the bankruptcy records referenced above to Equifax personnel on other occasions, including two faxes addressed to "Bev. Supervisor" respectively dated August 14, 2003, and August 18, 2003 [Ex. 7, 16 to Doc. 183], and two letters respectively dated October 9, 2003, and April 2, 2004 [Ex. 17 to Doe. 183].

Plaintiff's letter of October 9, 2003, stated as follows:

I have been contacting you repeatedly since June to get my credit report corrected. You are reporting incorrect information that belongs to Victoria Lopez Apodaca.

My birth date is [redacted]. My Social Security number is [redacted]. Above is my current address. I am enclosing a copy of my Social Security Card and my driver's license, which shows my birth date. You are incorrectly reporting my birth date as 7/20/51. I have previously provided you with both my driver's license and my Social Security card, but you are still reporting my birth date incorrectly.

In addition, you are incorrectly reporting that I filed for bankruptcy in New Mexico. I have never filed for bankruptcy. I am enclosing proof from the bankruptcy court that this bankruptcy is not mine. I have previously provided you with this proof that the bankruptcy is not mine, but you are still reporting it on my credit report.

Finally, you are also reporting the following items which are not mine:

— Direct Merchants, account number [redacted]

—Discover Financial, account number [redacted]

— GMAC, account number [redacted]

I have previously disputed these items with you over the telephone, but you continue to report them as mine.

Please correct my birth date, remove the bankruptcy and the above items from my credit report. Thank you.

[Ex. 17 to Doc. 183.] Plaintiff's letter of April 2, 2004, stated as follows:

Equifax is reporting items on my credit report that are not mine. These accounts belong to Victoria Lopez Apodaca, who lives in Las Cruces, NM and has a different social security number. Victoria Lopez Apodaca's social security number is [redacted].

Equifax is incorrectly reporting that I filed for bankruptcy in New Mexico. I have never filed for bankruptcy. Please find the enclosed proof from the bankruptcy court that the bankruptcy is not mine. I have previously provided you this proof, but you are still reporting the bankruptcy on my credit report.

Equifax is also reporting the following accounts, which are not mine: Discover Financial Account No. [redacted] and GMAC account no. [redacted]. I previously disputed these items, but Equifax continues to report them as mine.

Please delete the bankruptcy and the Discover Financial and GMAC accounts from my credit report. Please provide me with the results of your investigation.

[Ex. 17 to Doc. 183.]

Equifax did not delete the bankruptcy or the GMAC account from Plaintiffs credit report until after receiving Plaintiffs letter in April 2004. [Doc. 175.] The information regarding the Discover credit card remained on Plaintiffs credit report after that date, and other negative information attributable to another person remained on Plaintiffs credit report as of September 1, 2004, several months after she filed this civil action. [Ex. 28 to Doc. 183.]

As a result of the errors in Equifax's credit report and Equifax's failure to promptly correct those errors, Plaintiff claims that she and her family lost favorable financing for the purchase of a home referenced in her request of August 12, 2003 [Ex. 6 to Doc. 183], and that Wells Fargo Bank denied her application for a credit card in the Fall of 2003 [Ex. 19, 21 to Doc. 183.] Plaintiff seeks compensatory damages for the injuries she sustained as a result of these lost opportunities to engage in consumer credit transactions, as well as the damage to her credit rating, lost time, aggravation, inconvenience, embarrassment, and frustration resulting from Equifax's conduct. She also seeks punitive damages. [Doc. 1.]

In response to Plaintiffs claims, Equifax does not deny that Plaintiffs credit information became mixed with the credit information of another person who goes by the name "Victoria Lopez Apodaca," and that this mixture resulted in numerous inaccuracies on Plaintiffs credit report. During the course of this litigation, the parties located and deposed the person with whom Plaintiffs credit information was mixed [Ex. 2 to Doc. 183], so there is no question that there exist two separate people with similar names and Social Security numbers, one of them being the Plaintiff in this case.

Equifax offers the following explanation of why it took the company so long to recognize this fact and correct Plaintiffs credit report. Credit information regarding Plaintiff and millions of other consumers is stored in computer files in an automated data bank that Equifax creates and maintains for use in its business as a credit reporting agency. [Doc. 175.] The files in this data bank are "built" using a search logic that is designed to organize credit information in a single file pertaining to one consumer if the information matches at least seven of the nine digits of that consumer's Social Security number, and has the same name and same state of residence. Equifax uses such "partial matching logic," instead of requiring a total match of all identifying information concerning a particular consumer, in order to account for imperfections in the data it receives (such as minor name variations, the transposition of two digits of a Social Security number, or similar typographical errors). [Ex. B to Doc. 174.]

In this case, Equifax's partial matching logic mistakenly identified Plaintiff and "Victoria Lopez Apodaca" as one and the same consumer because seven of the nine digits in their Social Security numbers matched, they both resided in the State of New Mexico, and they use the...