Mitchell v. Surety Acceptance Corp., Civ. A. No. 92-B-1456.

• Decision Date: 23 November 1993
• Docket Number: Civ. A. No. 92-B-1456.
• Citation: 838 F. Supp. 497
• Parties: Sherri Lynn MITCHELL, Plaintiff, v. SURETY ACCEPTANCE CORPORATION and Norwest Bank of Grand Junction, a National Association f/k/a United Bank of Grand Junction, Defendants.
• Court: U.S. District Court — District of Colorado

838 F. Supp. 497

Sherri Lynn MITCHELL, Plaintiff, v. SURETY ACCEPTANCE CORPORATION and Norwest Bank of Grand Junction, a National Association f/k/a United Bank of Grand Junction, Defendants.

Civ. A. No. 92-B-1456.

United States District Court, D. Colorado.

November 23, 1993.

Robert A. Lees, Denver, CO, for plaintiff.

Richard L. Thorgren, Harding & Ogborn, Denver, CO, for Surety Acceptance.

Katherine J. Peck, Lawrence Zavadil, Holme Roberts & Owen, Denver, CO, for Norwest Bank.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Defendant Surety Acceptance Corporation (Surety) moves for summary judgment on all claims against it. For the reasons set forth below, I will grant Surety's motion as to plaintiff's claims for violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., and defamation. I will deny the motion, however, as to plaintiffs claim for violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and intentional infliction of emotional distress.

I.

In 1985, the United Bank of Grand Junction mistakenly disclosed the plaintiff Sherri Lynn Mitchell's social security number and savings/checking account numbers to Sherrie Lou Mitchell (Sherrie Lou). Thereafter, Sherrie Lou, later known also as Sherrie L. Duke and Sherri Lou McWilliams, used plaintiff's name, social security number and savings/checking account information to withdraw monies from plaintiff's bank and conduct business transactions with certain creditors.

In December of 1986, Sherri Lou issued a check payable to Safeway in the amount of $88.02. That check was subsequently returned unpaid as a result of insufficient funds. In 1987, Safeway referred that item for collection to Surety, an Arizona debt collecting agency. Surety's attempts to locate Sherri Lou in the Phoenix area failed, and in January of 1989, Surety reported the item as a skip collection item to TRW, a credit bureau. At that time, Surety gave TRW the name of Sherri Lou McWilliams, with a last known address in Mesa, Arizona. Because the Safeway check did not contain a social security number, Surety did not provide that information to TRW.

In December of 1989, Sherri Lou was involved in an auto accident in Phoenix, Arizona. At that time, Sherrie Lou utilized plaintiff's social security number in her identification to the police officer investigating the accident. Later, an investigator for a non-party collection firm obtained the accident report which listed plaintiff's social security number, and erroneously concluded that plaintiff and Sherrie Lou were one and the same individual. That conclusion was then reported to TRW.

On February 12, 1991, plaintiff, after learning of negative credit information contained on her credit report, requested a copy of her TRW credit report from TRW. TRW received the February 12, 1991 credit report back from plaintiff on May 15, 1991 with disputes noted on it. Plaintiff disputed many accounts including the account reported by Surety.

In June 1991, Surety received a dispute verification form from TRW regarding the information previously supplied by Surety with respect to the Safeway check. Surety checked a box on the form provided by TRW indicating that the information was verified as reported. TRW provided Surety with information that Sherrie Lou was also known as plaintiff, Sherrie L. Mitchell, with an address in Denver, Colorado.

On June 14, 1991, Surety mailed plaintiff a demand letter seeking repayment of the check issued to Safeway in 1986. Plaintiff then contacted Surety on June 27, 1991, advising it that she was not Sherrie Lou and that she was not liable for the check. Surety continued to report to TRW that the debt was verified as reported.

Plaintiff asserts four claims for relief against Surety based on the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., one claim based on the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and claims for defamation and outrageous conduct.

II.

Fed.R.Civ.P. 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992).

Once the moving party demonstrates an absence of evidence supporting an essential element of the plaintiff's claim, the burden shifts to the plaintiff to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. To satisfy this burden the nonmovant must point to specific facts in an affidavit, deposition, answers to interrogatories, admissions, or other similar admissible evidence demonstrating the need for a trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Mares, 971 F.2d at 494.

Summary judgment is also appropriate where no reasonable jury could return a verdict for the claimant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511; Mares, 971 F.2d at 494. However, summary judgment should not enter if, viewing the evidence in light most favorable to the non-moving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Mares, 971 F.2d at 494.

III.

A. Application of FCRA

Plaintiff's first, second, fourth and sixth claims for relief contend that Surety violated the provisions of the Fair Credit Reporting Act by 1) either willful or negligent failure to reinvestigate and delete information which the plaintiff had demonstrated to be inaccurate, 2) failure to follow reasonable procedures to assure accuracy of information concerning the plaintiff, and 3) negligent non-compliance with the requirements of FCRA. Surety argues that it is not a consumer reporting agency under FCRA and, therefore, the claims pursuant to FCRA must be dismissed. I agree.

The Fair Credit Reporting Act was adopted to assure that consumer reporting agencies adopt reasonable procedures to protect the accuracy and confidentiality of consumer credit information. 15 U.S.C.A. §§ 1681(a)(4), (b); Heath v. Credit Bureau of Sheridan, Inc., 618 F.2d 693, 695 (10th Cir. 1980). Pursuant to 15 U.S.C.A. § 1681a(f), a consumer reporting agency is defined as:

any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.

15 U.S.C.A. § 1681a(f).

Surety is a debt collection agency and has supplied sworn testimony to the effect that "Surety is not in the business of assembling or evaluating consumer credit information for the purpose of furnishing consumer reports to third parties. Rather, Surety seeks to collect bad accounts referred to us by clients." Affidavit of Art Gordon, Assistant Manager, Surety Acceptance Corporation, ¶ 2. Plaintiff has failed to make a sufficient showing to raise a genuine issue of fact that Surety is a credit reporting agency.

Unsupported allegations that Surety is a credit reporting agency are not sufficient to meet her burden on this motion for summary judgment. Numerous courts have held that merely furnishing information to a credit reporting agency is not enough to transform the reporting company into a consumer reporting agency under the statute. Smith v. First Nat. Bank of Atlanta, 837 F.2d 1575, 1579 (11th Cir.1988), cert. denied, 488 U.S. 821, 109 S.Ct. 64, 102 L.Ed.2d 41 (1988); D'Angelo v. Wilmington Medical Center, Inc., 515 F.Supp. 1250, 1253 (D.Del.1981); Zeller v. Samia, 758 F.Supp. 775, 782 (D.Mass.1991). At least one court has specifically held that a debt collection agency is not subject to FRCA. D'Angelo, 515 F.Supp. at 1253. Because plaintiff's claims pursuant to the FCRA apply only to credit reporting agencies, I will grant Surety's motion on these claims.

B. Application of FDCPA

Plaintiff's third claim for relief asserts that Surety violated sections 1692c through g of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. § 1692 (1982), through the use of false, deceptive, or misleading representations in connection with attempts to collect a debt against the plaintiff. The FDCPA was enacted to eliminate false, deceptive, misleading, unfair, or harassing debt collection practices. Rutyna v. Collection Accounts Terminal, Inc., 478 F.Supp. 980 (N.D.Ill.1979).

Surety first argues that plaintiff's claim pursuant to the FDCPA is time-barred. The FDCPA contains a one-year statute of limitations provision. Section 1692k(d) directs that any action to enforce liability under the statute must be commenced within one year from the date on which the violation occurs. 15 U.S.C.A. § 1692k(d). Surety argues that because the last contact it had with the plaintiff occurred in June of 1991, the third claim...