Benjamin v. Experian Info. Solutions, Inc.

• Decision Date: 20 September 2021
• Docket Number: CIVIL ACTION NO. 1:20-CV-2466-RWS
• Citation: 561 F.Supp.3d 1330
• Parties: Charlynda BENJAMIN, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

561 F.Supp.3d 1330

Charlynda BENJAMIN, Plaintiff,

v.EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.

CIVIL ACTION NO. 1:20-CV-2466-RWS

United States District Court, N.D. Georgia, Atlanta Division.

Signed September 20, 2021

Jenna Dakroub, Price Law Group, APC, Scottsdale, AZ, for Plaintiff.

Christopher Michael Johnson, Pro Hac Vice, Jones Day, San Diego, CA, Eric A. Nicholson, Pro Hac Vice, Jones Day, Detroit, MI, Andrew Mark Ellis, Jones Day, Atlanta, GA, for Defendant.

OPINION AND ORDER

RICHARD W. STORY, United States District Judge

This matter is before the Court on the August 4, 2021 Final Report & Recommendation ("R&R") of Magistrate Judge Regina D. Cannon [Doc. 72] recommending that the Court deny Plaintiff's Motion for Partial Summary Judgment [Doc. 48] and that Defendant's Motion for Summary Judgment [Doc. 49] be granted in part and denied in part. Also before the Court are Defendant Experian Information Solutions’ Objections to the R&R [Doc. 74], Plaintiff's Partial Objection to the R&R [Doc. 75], Plaintiff's Response in Opposition to Defendant Experian Information Solutions, Inc.’s Objections to the R&R [Doc. 76], and Defendant Experian Information Solutions’ Response to Plaintiff's Partial Objection to the R&R [Doc. 77]. For the reasons set forth herein, the Court overrules the parties’ respective objections and adopts the R&R as the decision of this Court.

I. Background

Plaintiff Charlynda Benjamin ("Plaintiff") alleges in this lawsuit that Defendant Experian Information Solutions, Inc. ("Defendant" or "Experian"), a credit reporting agency ("CRA"), violated 15 U.S.C. § 1681e(b) of the Fair Credit Reporting Act ("FCRA") by not maintaining reasonable procedures to assure maximum possible accuracy of Plaintiff's reported consumer information. Plaintiff specifically contends that Experian failed to maintain reasonable procedures to update debts discharged through Chapter 7 of the Bankruptcy Code.

By way of brief background, Plaintiff opened an account with MoneyLion, Inc. ("MoneyLion") in August 2019 and then filed for Chapter 7 bankruptcy the following month. Plaintiff's bankruptcy was discharged in January 2020. In May 2020, Plaintiff learned that Experian was still reporting an owed balance of $330 on the MoneyLion account and a past-due amount of $139 on that account. Additionally, the MoneyLion account was reporting as 30 days late in December 2019, as 60 days late in March 2020, and as charged off in April 2020. Nonparties Equifax and Trans Union correctly reported the MoneyLion account as discharged through bankruptcy.

Plaintiff likewise alleges that Experian failed to follow procedures to which it had previously agreed in a 2008 class action settlement of White v. Experian Info. Sols., Inc. , Case No. 05-CV-1073, 2008 WL 11518799, at *1 (C.D. Cal. Aug. 19, 2008), a case that concerned the reporting of debts discharged in consumer bankruptcies. The settlement agreement "incorporat[ed] new procedures that make use of assumptions regarding the likely discharged status of certain pre-bankruptcy tradelines." Id. at *3. The specifics of those procedures are set forth in the R&R. (Doc. 72 at 4-6).

Plaintiff commenced this lawsuit on June 9, 2020. Plaintiff alleges that Experian negligently and willfully violated § 1681e(b). She seeks to recover actual damages, statutory damages, and punitive damages as a result of the alleged inaccurate reporting of the MoneyLion account.

Both Plaintiff and Defendant have moved for summary judgment. Plaintiff moves for partial summary judgment, seeking determinations as a matter of law that the information reported about her by Experian was inaccurate and that Experian did not have a reasonable procedure in place to assure maximum possible accuracy of the information reported by Experian. Experian moves for summary judgment on all of Plaintiff's claims. As mentioned above, Magistrate Judge Cannon has issued an R&R, and both parties have filed objections. The R&R and the parties’ objections are ripe for the Court's review.

II. Standard of Review

1 In reviewing a report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) ; see also United States v. Schultz , 565 F.3d 1353, 1361 (11th Cir. 2009). "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." Schultz , 565 F.3d at 1361 (quoting Marsden v. Moore , 847 F.2d 1536, 1548 (11th Cir. 1988) ) (internal quotation marks omitted). Absent objection, the district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1), and "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72, advisory committee note, 1983 Edition, Subdivision (b); Macort v. Prem, Inc. , 208 Fed. Appx. 781, 784 (11th Cir. 2006) (quoting Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310, 315 (4th Cir. 2005) ).

III. Summary of Objections

Objecting to the R&R, Defendant contends that the Magistrate Judge erred in the following four ways: 1) misconstruing Losch v. Nationstar Mortg. LLC , 995 F.3d 937 (11th Cir. 2021) and concluding that Experian had notice of the alleged inaccuracy; 2) finding a fact question as to the reasonableness of Experian's procedures; 3) ignoring Eleventh Circuit precedent requiring a causal connection between an inaccurate consumer report and asserted damages; and 4) concluding that Plaintiff has presented evidence of emotional distress sufficient to create a genuine factual issue regarding actual damages.

Plaintiff objects only to the portion of the R&R in which the Magistrate Judge recommends that summary judgment be granted in favor of Defendant with respect to Plaintiff's claim for willful violation of the FCRA.

IV. Discussion

A. Experian's Notice of the Alleged Inaccuracy

Experian first objects to the Magistrate Judge's conclusion that Experian had sufficient notice that the MoneyLion account had been discharged in bankruptcy. Experian argues that the Magistrate Judge misconstrued the Eleventh Circuit's Losch decision in concluding that Experian's notice of Plaintiff's Chapter 7 bankruptcy discharge order sufficiently provided Experian notice that each of Plaintiff's pre-bankruptcy debts was discharged. Experian further argues that Losch and the out-of-circuit precedent it adopts require more specific notice than that found to be sufficient by Judge Cannon. Experian emphasizes that neither MoneyLion nor Plaintiff informed Experian that the debt was discharged and asserts that it otherwise had no means to "pinpoint" a potential inaccuracy. (Doc. 74 at 4).

Having thoroughly considered Experian's arguments and closely reviewed the applicable authority, the Court is of the opinion that Experian misconstrues the extent of the notice required for a § 1681e(b) claim and is confusing it with that required for a claim under § 1681i, which governs reinvestigations. Experian maintains that " Losch adopts the holdings and reasoning of out-of-circuit precedent establishing that a CRA must have notice of a credit-reporting inaccuracy in order to be held liable under § 1681e(b)." (Doc. 74 at 3). Experian further states that the requisite notice in Losch and the requisite notice contemplated in two decisions that Losch cites is through a consumer dispute. ( Id. at 5) (citing Losch , 995 F.3d at 945, Henson v. CSC Credit Servs. , 29 F.3d 280, 286-87 (7th Cir. 1994), and Cushman v. Trans Union Corp. , 115 F.3d 220, 225 (3d Cir. 1997) ). The Court addresses Experian's contentions below.

23 As an initial matter, there is no requirement that a customer file a dispute with a CRA before bringing a claim against the CRA for a violation of § 1681e(b). Morgan v. Trans Union, LLC , CIVIL ACTION FILE NO. 1:19-cv-1526-CC-JKL, 2019 WL 5490624, at *4 (N.D. Ga. Aug. 26, 2019) ("There is no requirement under § 1681e(b) that a consumer first dispute the accuracy of the information with a third-party before a cause of action accrues."); see also Alsibai v. Experian Info. Sols. , 488 F. Supp. 3d 840, 847 (D. Minn. 2020) ("The provision of the FCRA at issue here, § 1681e, does not require a consumer to report inaccurate information to an agency before filing a lawsuit."); Morris v. Experian Info. Sols. , 478 F. Supp. 3d 765, 769-70 (D. Minn. 2020) ("Notifying the CRA of an inaccuracy is not a prerequisite to asserting a claim under § 1681e(b), however."); Gibson v. Experian Info. Sols. , 494 F. Supp. 3d 613, 616 (E.D. Mo. 2020) (stating that "section 1681e(b) does not require a consumer to notify the CRA of an error"). It is the case, however, that "a reporting agency's procedures will not be deemed unreasonable unless the agency has a reason to believe that the information supplied to it by a data furnisher is unreliable." Losch , 995 F.3d at 945 (citing Sarver v. Experian Info. Sols. , 390 F.3d 969, 972 (7th Cir. 2004) ); Frydman v. Experian Info. Sols. , 14cv9013-PAC-FM, 2016 WL 11483839, at *12 (S.D.N.Y. Aug. 11, 2016) ("Courts have consistently held ... that a CRA does not violate its duty to assure reasonable accuracy pursuant to Section 1681e(b) simply by reporting an inaccurate debt or judgment, absent prior reason to believe that its source was unreliable."); see also Aslani v. Corelogic Credco, LLC , No. 1:13-CV-2635-CC-LTW, 2014 WL 12861199, at *4 (N.D. Ga. Aug. 18, 2014) ("Because Section 1681e(b) contains no notice requirement, the absence of notice is only relevant where a defendant has shown that its procedures are otherwise reasonable as a matter of law."), report and recommendation adopted , 2014 WL 12861361 (N.D. Ga. Sept. 8, 2014).

Experian points to a ruling included in a...