King v. Asset Acceptance, LLC
| Citation | 452 F.Supp.2d 1272 |
| Decision Date | 19 September 2006 |
| Docket Number | No. 1:05-CV-1535-JTC.,1:05-CV-1535-JTC. |
| Parties | Charles KING, Plaintiff, v. ASSET ACCEPTANCE, LLC, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Lisa Dionne Wright, Law Office of Lisa D. Wright, Atlanta, GA, for Plaintiff.
Michelle Rae Legault, Finley & Buckley, Atlanta, GA, for Defendant.
This matter is currently before the Court on Defendant's motion for summary judgment [# 67] and Plaintiffs motion for partial summary judgment [# 85]. Defendant's motion for summary judgment [# 67] is GRANTED in part and DNIED in part. The motion is GRANTED with respect to Plaintiffs Fair Debt Collection Practices Act ("FDCPA") claim and claim of willful violation of the Fair Credit Reporting Act ("FCRA"). The motion is DENIED with respect to Plaintiffs claim of negligent violation of the FCRA and claim for actual damages under the FCRA. Plaintiffs motion for partial summary judgment [# 85] is DENIED. Defendant's motion for leave to file a brief in support of its motion for hearing [# 93] is GRANTED. The motion for hearing [# 92] is DENIED.
Sometime in 2001, Plaintiff Charles King discovered that his former girlfriend opened a credit card account with First Consumers National Bank/Newport News ("First Consumers") in King's name by using his social security number without his permission. (DSMF ¶¶ 2-3; King Dep. at 151-54.)2 King received bills for the account and ignored them, and the account became delinquent. (DSMF ¶ 6; King Dep. at 154.) In September 2002, Defendant Asset purchased the delinquent account from First Consumers. (DSMF ¶ 116; Proctor Aff. ¶ 29.) Defendant Asset informed King of its purchase of the First Consumers account via letter in 2002 and sent collection letters in 2003 and 2004. (DSMF ¶¶ 118, 120; Proctor Aff. ¶¶ 31, 33.) Asset reported its collection account for the past due First Consumers account to at least one credit reporting agency. In November 2004, King obtained his credit report from Equifax, a credit reporting agency, which reported a delinquent First Consumers credit card account and a collection account by Defendant Asset for the First Consumers account. (Complaint ¶¶ 21-23; King Dep. at 78-80.)
In February 2005, King was denied an automobile loan due to delinquent credit obligations reported on his Equifax credit report. (DSMF ¶¶ 41, 45.) On February 11, 2005, King sent a letter to the three credit reporting agencies, Equifax, Experian, and TransUnion, as well as First Consumers and Asset, to dispute the Asset collection account and the underlying First Consumers account. His letter stated:
I have not opened an account, or authorized anyone to open an account in my name with your company [First Consumers]. Please provide a copy of the authorization that was used to open this account.
Please advise the three Credit Bureaus and Collection agencies involved, to remove this information from my credit report, this is having a detrimental affect [sic] on my credit.
(# 72, Exh. 1.) Asset responded on February 15, 2005, that it had reported its collection account, based on the First Consumers account, as "disputed" to the credit reporting agencies and provided King an "account statement" containing the name on the account, account number, account balance, and the address, phone number, and social security number connected to the account.
On March 8, 2005, Equifax generated an Automated Consumer Dispute Verification form ("ACDV") and sent it to First Consumers. (DSMF ¶72.) The ACDV contained entries for the consumer's personal information as reflected in Equifax's files and a space for First Consumers, the data furnisher, to respond with the corresponding information from its files. (DSMF ¶¶ 69-70.) The ACDV also had a space for "dispute codes" to categorize the consumer's dispute according to its type and in which a consumer comment regarding the dispute could be conveyed. (DSMF ¶ 72.) The ACDV sent to First Consumers indicated that the account was not the consumer's and requested that First Consumers provide a complete ID and account information. (DSMF ¶ 72; Equifax Dep. at 15.) First Consumers responded to the ACDV on March 10, 2005, and instructed Equifax to delete the account from King's credit file without additional comment. (DSMF ¶ 73; Equifax Dep. at 15-16.)
When Asset receives an ACDV, it reviews the account information provided by the credit reporting agency on the ACDV, compares it to the information in Asset's files for the account, and notes on the ACDV any "identifiers," such as name, date of birth, address, and social security number, that match. (DSMF ¶102.) Asset also notes the dispute codes and customer comments listed in the ACDV and enters that information into its own records for the account. (DSMF ¶ 104.) If the ACDV indicates identity theft or fraud or the consumer alerts Asset directly of a claim of identity theft or fraud, Asset modifies the account to send the consumer a letter requesting an identity theft report which requires the submission of a police report, identity theft/fraud affidavit from the Federal Trade Commission website, or any other information the consumer might have that would help Asset identify that the consumer had been the victim of identity theft/fraud. (DSMF ¶¶ 112-13.) Asset does not typically request account documents from the original creditor in its review of an ACDV.3 (PSMF ¶¶ 20.)
On March 28, 2005, Asset verified to Experian the address and social security number contained in the March 8, 2005, ACDV. (DSMF ¶ 130; PSMF ¶ 94; Proctor Dep. at 197.) Asset noted that the name Experian provided, "Charles M King," was different from the name in its records, "Charles Martin King." (DSMF ¶ 130.) Asset did not request an identity theft report because neither King's letter nor the ACDV mentioned identity theft or fraud. (DSMF ¶ 126.)
On King's March 30, 2005, Equifax credit report, Defendant Asset reported its collection account of the First Consumers account as 120 days past due and noted that the consumer disputed the account information.4 (DSMF ¶ 74; Equifax Dep. at 21.) On April 8, 2005, King sent letters to Equifax, Experian, and TransUnion, but not to Asset directly, requesting that they reinvestigate the Asset collection account still being reported in his credit file. (Pl.'s Summ. J. Resp., Exh. 1.) Specifically, King requested that the credit reporting agencies "contact Asset Acceptance LLC and request that they contact FCNB/Newport News regarding this fraudulent account and request that they delete this fraudulent collection account' on my credit report." (Id.)
On April 16, 2005, Equifax sent an ACDV to Asset, which stated in the comments section The ACDV also noted that the "consumer disputes this account information" and that the "consumer claims that this account is fraudulent." (Bates Stamped Doc. # 500167). On May 5, 2005, Asset responded to the April 16, 2005, ACDV and verified that the address and social security number on the ACDV matched Asset's records, but noted that the name on the ACDV ("Charles Martin King") differed from Asset's records ("Charles— King"). (DSMF ¶ 131.) Despite the notation of fraud on the ACDV, Asset did not contact King to request an identity theft report because King's account was, in a "cease communication" status.5 (DSMF ¶¶ 131-32.) As a result of Asset's verification of the information in the April 16, 2005, ACDV, Asset's collection account remained on King's credit reports.
In June 2005, King applied for a Wachovia credit card and was not approved. (DSMF ¶ 46.) MBNA America Bank, the issuer of Wachovia credit cards, denied King's application due to four major delinquencies on his June 1, 2005, credit report, one of which was the Asset collection account. (DSMF ¶¶ 49, 52.)
Summary judgment is proper when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The movant carries the initial burden and must show the Court that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "Only when that burden has been met does the burden shift to the nonmoving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark. Inc., 929 F.2d 604, 608 (11th Cir.1991). The nonmovant is then required "to go beyond the pleadings" and to present competent evidence in the form of affidavits, depositions, admissions and the like, designating "`specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)). "The mere existence of a scintilla of evidence" supporting the nonmovant's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Resolving all doubts in favor of the nonmoving party, the Court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id.
Plaintiff King claims that Defendant Asset violated § 1681s-2(b) of the Fair Credit Reporting Act ("FCRA"). Specifically, King asserts that Asset's actions constituted both willful violations under § 1681n and negligent violations under § 1681o. King also contends that Asset violated § 1692e of the Fair Debt Collection Practices Act ("FDCPA"). Asset moves for summary judgment on all claims. King moves for partial summary judgment on his claim of negligent violation of the FCRA.
Plaintiff alleges that Defendant violated § 1681s-2(b) of the FCRA. Section 1681s-2(b) states:
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