Gorman v. Wolpoff & Abramson, LLP, 011209 FED9, 06-17226

Docket Nº:06-17226
Opinion Judge:Richard A. Paez and Marsha S. Berzon, Circuit Judges, and Harold Baer, District Judge
Party Name:John C. Gorman, an individual, Plaintiff-Appellant, v. Wolpoff & Abramson, LLP; MBNA America Bank, N.A., Defendants-Appellees.
Attorney:John C. Gorman and Charles J. Stiegler, San Jose, California, for the plaintiff-appellant. Tomio B. Narita and Jeffrey A. Topor, San Francisco, California, for the defendants-appellees.
Judge Panel:Before: Richard A. Paez and Marsha S. Berzon, Circuit Judges, and Harold Baer, District Judge.
Case Date:January 12, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

John C. Gorman, an individual, Plaintiff-Appellant,


Wolpoff & Abramson, LLP; MBNA America Bank, N.A., Defendants-Appellees.

No. 06-17226

United States Court of Appeals, Ninth Circuit

January 12, 2009

Argued and Submitted July 17, 2008-San Francisco, California

Amended October 21, 2009

Appeal from the United States District Court for the Northern District of California James Ware, District Judge, Presiding D.C. No. CV-04-04507-JW


John C. Gorman and Charles J. Stiegler, San Jose, California, for the plaintiff-appellant.

Tomio B. Narita and Jeffrey A. Topor, San Francisco, California, for the defendants-appellees.

Before: Richard A. Paez and Marsha S. Berzon, Circuit Judges, and Harold Baer,[*] District Judge.


The opinion filed January 12, 2009, is hereby amended. The amended opinion is attached hereto.

With these amendments, the panel unanimously has voted to deny Appellant's petition for rehearing en banc and Appellee's petition for panel rehearing and petition for rehearing en banc.

The full court has been advised of the petitions for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing is DENIED and the petitions for rehearing en banc are DENIED. No further petitions for rehearing or rehearing en banc may be filed.


BERZON, Circuit Judge

John Gorman tried to buy a satellite television system using his credit card, issued by MBNA America Bank. He was unsatisfied with the system purchased, and lodged a challenge with MBNA to dispute the charge. Unhappy with MBNA's response, Gorman instituted this lawsuit against MBNA, alleging violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x, libel, and violations of California Civil Code section 1785.25(a). The district court dismissed his California statutory claim and granted MBNA summary judgment on the other causes of action. Gorman v. Wolpoff & Abramson, LLP ("Gorman I"), 370 F.Supp.2d 1005 (N.D. Cal. 2005); Gorman v. Wolpoff & Abramson, LLP ("Gorman II), 435 F.Supp.2d 1004 (N.D. Cal. 2006). We affirm in part and reverse in part.


In December 2002, John Gorman paid for the delivery and installation of a new satellite TV system on a Visa credit card issued by MBNA America Bank ("MBNA"). The charge, $759.70, was posted on his January 2003 credit card statement. According to Gorman, the merchant, Four Peaks Home Entertainment ("Four Peaks"), delivered a used and defective TV system and botched the installation, damaging his house in the process. Gorman told Four Peaks he was refusing delivery of the goods and asked for a refund, but Four Peaks refused to refund the charges unless Gorman arranged to return the TV system. The defective equipment is still in Gorman's possession.1

In February 2003, Gorman notified MBNA that he was disputing the charges and submitted copies of emails between himself and Four Peaks. The attached emails showed that Gorman had informed a Four Peaks representative that the delivered goods were "unacceptable and [were] rejected." He also noted damage from the installation and notified Four Peaks that he "plan[ned] to dispute the credit card charges in their entirety, as the damage exceeds the amount of the charges."

MBNA responded to the dispute notice with a request for additional information from Gorman about the dispute, including proof that the merchandise had been returned. A month passed, and MBNA wrote Gorman again, stating that as he had not responded, it assumed the charge was no longer disputed. Gorman answered that he continued to dispute the charge, and referred MBNA to his original notice of dispute. He did not claim to have returned the equipment, but stated that the merchandise "has been available for the merchant to pick up." MBNA again requested proof that the goods had been returned; Gorman did not reply.

In April 2003, MBNA informed Gorman that it was "unable to assist [him] because the merchandise has not been returned to the merchant." Gorman called an MBNA representative saying, again, that all relevant information was in his original letter. MBNA then contacted Four Peaks, which told MBNA that it had shipped replacement equipment to Gorman but that he had not sent the old equipment back to them.

In July 2003, MBNA again informed Gorman that it could not obtain a credit on his behalf without further information from him. Gorman, who is a lawyer, responded in writing on his law firm's letterhead, stating that MBNA had all the information it needed, that he had left several unanswered messages with MBNA asking to speak with someone about the dispute, and that he would "never" pay the disputed charge. He further stated that MBNA had violated the Fair Credit Billing Act, that he was "entitled to recover attorneys' fees for MBNA's violation," and that he was offsetting his legal fees against his current account balance and so would make no more payments on the card, for the TV system or anything else.2 The balance at that time was more than $6,000.3

Gorman's letter to MBNA worked, at least temporarily. In August 2003, MBNA removed the Four Peaks charge and related finance charges and late fees from Gorman's credit card bill. Over the next two months, MBNA again contacted Four Peaks, which once more informed MBNA that it would not issue a credit for Gorman's charge until he returned the refused equipment. When MBNA called Gorman, he informed them he had the merchandise and "ha[d] no intention of ever [returning] it." In October, MBNA reposted the charge to Gorman's account.

After he stopped making payments on his card, Gorman claims, he received numerous harassing phone calls. During one of these calls, Gorman alleges, an MBNA representative told him, "We're a big bank. You either pay us or we'll destroy your credit."

In January 2004, MBNA reported Gorman's account to the credit reporting agencies ("CRAs") as "charged-off."4Between May 2004 and November 2005, Gorman informed the three major credit reporting agencies (Equifax, Trans-Union, and Experian) that their credit reports included inaccurate information.

As required by federal law, the CRAs sent MBNA notices of dispute containing descriptions of Gorman's complaints (as understood by the CRAs) and asking the bank to verify the accuracy of his account records. MBNA responded by reviewing the account records and notes. After ascertaining that its prior investigation did not support Gorman's claimed dispute, MBNA notified the CRAs that the delinquency was not an error. According to Gorman, MBNA did not notify the CRAs that the charges remained in dispute, and the CRAs did not list the charges as disputed.5

Since his credit reports began listing his MBNA account as delinquent, Gorman has been denied credit altogether or offered only high interest rates on at least three occasions. He contends that the MBNA account is the only negative entry on his credit report.

In September 2004, Gorman sued MBNA. The complaint alleges violations of the federal Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x and a California credit reporting law, California Civil Code section 1785.25(a), and also alleges a claim for libel. Gorman seeks injunctive relief, damages resulting from MBNA's reporting of his account, and damages from lost wages for the time he spent dealing with his credit that he would have otherwise spent billing clients. The district court dismissed Gorman's California statutory claim as preempted and granted MBNA summary judgment on all other claims. Gorman timely appeals.

For the reasons stated below, we affirm in part and reverse in part the district court's grant of summary judgment on the FCRA claims; we affirm the district court's grant of summary judgment on Gorman's libel claim; and we reverse the district court's dismissal of Gorman's California statutory claim.


This case comes to us on summary judgment. We review a grant of summary judgement de novo. Bodett v. CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004). Summary judgement is appropriate where, "drawing all reasonable inferences supported by the evidence in favor of the non-moving party," the court finds "that no genuine disputes of material fact exist and that the district court correctly applied the law." Id. (internal quotation omitted). The non-moving party "must make a showing sufficient to establish a genuine dispute of material fact regarding the existence of the essential elements of his case that he must prove at trial." Galen v. County of Los Angeles,477 F.3d 652, 658 (9th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 321-23 (1986)).

Questions of statutory interpretation and federal preemption are, of course, reviewed de novo. J & G Sales Ltd. v. Truscott, 473 F.3d 1043, 1047 (9th Cir. 2007); Davis v. Yageo Corp., 481 F.3d 661, 673 (9th Cir. 2007).

A. Fair Credit Reporting Act Claims

1. Statutory Background

Congress enacted the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x,6 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, 127 S.Ct. 2201, 2205 (2007). As an important means to this end, the Act sought to make "consumer reporting agencies exercise their grave responsibilities [in assembling and evaluating consumers' credit, and disseminating information about consumers' credit] with fairness, impartiality, and a respect for the consumer's right to privacy." 15 U.S.C. § 1681(a)(4). In addition, to ensure that credit reports are accurate, the FCRA imposes some...

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