Riley v. Equifax Info. Servs.

Decision Date24 August 2021
Docket Number2:20-cv-312-SPC-NPM
CourtU.S. District Court — Middle District of Florida


Before the Court are the parties' cross Motions for Summary Judgment (Docs. 54; 57) and related briefing (Docs. 58; 61 62; 63; 70; 71). The Court grants in part Defendant Equifax Information Services, LLC's Motion and denies Plaintiff Mark Riley's Motion.


This is a Fair Credit Reporting Act (“FCRA”) case. Riley took out one mortgage (the “Debt”). At some point, the Debt transferred to Ocwen Loan Servicing, LLC for servicing. Eventually, Riley learned the tradeline for the Debt appeared twice on his credit report. This made it look like he had two mortgages on the property.

Equifax prepares credit reports. In late 2018, Riley contacted Equifax about reporting issues. After investigating, Equifax sent Riley a letter explaining the changes it made (the 2018 Letter”). The 2018 Letter showed two identical tradelines for the Debt. Then, in 2019, Riley reached out to Equifax again-this time disputing the duplicate tradelines. Equifax failed to notify Ocwen of the dispute. After investigating, Equifax did not delete either tradeline and mailed Riley another letter (the 2019 Letter”). The 2019 Letter explained the tradeline was not reporting as a duplicate. It also showed differences between the tradelines.

As a credit reporting agency (“CRA”), Equifax has policies and procedures in place for credit reporting and investigating disputes. Specifically, it has procedures for dealing with duplicate tradelines. Under Equifax's policy, tradelines are not duplicates unless they have the same (1) creditor name; (2) account number; (3) open date and (4) high credit amount. In the 2019 Letter, the tradelines reflected different open dates (among other differences). So, the tradelines would not be considered a duplicate under the policies.[2]

During the case, Riley voluntarily dismissed his claim against Ocwen. (Doc. 15). Then, the Court bifurcated discovery on liability and damages. (Doc. 40). The parties finished discovery on liability. Now, Riley and Equifax each move for judgment on the issue.


“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). And a material fact is in genuine dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The moving party bears the initial burden to show the lack of genuinely disputed material fact. Shiver v Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If carried, the burden shifts onto the nonmoving party to point out a genuine dispute. Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2018). At this stage, courts view all facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Rojas v. Florida, 285 F.3d 1339, 1341-42 (11th Cir. 2002).

When (as here) the parties file cross summary judgment motions, these principles are unchanged. Bricklayers, Masons & Plasterers Int'l Union of Am. v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975). The only difference is that courts must take care to view the facts most favorably to the nonmovant for each motion. Chavez v. Mercantil Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012).


To start, the parties agree Equifax is a CRA under FCRA. With that issue decided, the Court tackles each of Riley's claims before turning to his challenge on Equifax's affirmative defense.

A. Credit-Reporting Claim

First, Riley contends Equifax violated FCRA by reporting duplicate tradelines for the Debt.

When preparing consumer reports, CRAs must “follow reasonable procedures to assure maximum accuracy of the information.” 15 U.S.C. § 1681e(b). “To state a claim for a violation of FCRA section 1681e(b) a plaintiff must allege: (1) the CRA published an inaccurate consumer report to a third party; (2) in publishing its consumer report, the CRA failed to follow reasonable procedures to assure the maximum possible accuracy of the consumer report; and (3) the plaintiff suffered actual damages as a result of the CRA's failure to follow reasonable procedures.” Lazarre v. JPMorgan Chase Bank, N.A., 780 F.Supp.2d 1330, 1335-36 (S.D. Fla. 2011).

The parties seem to agree reporting both tradelines could be inaccurate or at least misleading. See Erickson v. First Advantage Background Servs., 981 F.3d 1246, 1251-52 (11th Cir. 2020) (holding “that to reach ‘maximum possible accuracy,' information must be factually true and also unlikely to lead to a misunderstanding”). Deciding “whether a report is misleading is an objective measure.” Id. And reporting both identical tradelines was “objectively likely to cause” someone reviewing Riley's report to believe he had two mortgages. See Id. Indeed, Riley attests one mortgage lender specially came to that conclusion and denied his application. So reporting both tradelines did not meet maximum possible accuracy.

Yet the fact Riley's report contained inaccurate or misleading information does not end the analysis. “FCRA does not make [CRAs] strictly liable for all inaccuracies, but instead creates a private right of action for negligent or willful violations of the FCRA.” Williams v. First Advantage LNS Screening Sols. Inc., 947 F.3d 735, 745 (11th Cir. 2020). While those standards are different, both theories demand consumer show CRA failed to follow reasonable procedures when preparing a consumer report. Losch v. Nationstar Mortgage LLC, 995 F.3d 937, 947 (11th Cir. 2021).

1. Consumer Reports

Before turning to the merits, it is necessary to resolve the parties' disagreement about the 2018 Letter. The parties disagree whether it was a consumer report.

The 2018 Letter showed identical tradelines for the Debt. Equifax sent the 2018 Letter as part of a reinvestigation, which specified several updates to the tradelines. Because the tradelines were identical, they appear to meet the criteria for a duplicate entry that Equifax should not have reported on a consumer report. Yet as Equifax counters, the 2018 Letter was not itself a consumer report. So at most, the 2018 Letter reflected Equifax had duplicative information in Riley's file. But this does not suggest that information was part of any consumer report.

To be sure, after a reinvestigation, CRA must send consumer an updated consumer report along with the reinvestigation results. 15 U.S.C. § 1681i(a)(6)(B)(ii); Nunnally v. Equifax Info. Servs., LLC, 451 F.3d 768, 772 (11th Cir. 2006). Some decisions grappled with whether the reinvestigation report itself is a consumer report under FCRA.[3] In other words, they state communication to a third party is not a prerequisite for a consumer report.

The Court need not weigh in for several reasons. Most importantly, Riley has not argued a consumer report need not be communicated to a third party. Nor did Riley allege the 2018 Letter was the consumer report underlying his claims. See generally (Doc. 45). In effect, Riley tries to amend his Complaint through summary judgment briefing. That's a no-no. E.g., Monaghan v. Worldpay US, Inc., 955 F.3d 855, 859 (11th Cir. 2020) (The plaintiff cannot amend her complaint through argument made in her brief in opposition to the defendant's motion for summary judgment.” (cleaned up)). What's more, binding and persuasive authority disagrees with any argument Riley impliedly made. Collins v. Experian Info. Sols., Inc., 775 F.3d 1330, 1335 (11th Cir. 2015) (“A ‘consumer report' requires communication to a third party, while a ‘file' does not.”); see Losch, 995 F.3d at 944; Cahlin, 936 F.2d at 1158.[4] For those reasons, the Court need not wade into this unsettled issue.

Underlying the uncertain nature, as Equifax hints, are potentially serious standing issues for suing based on information not published to a third party. See TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2210 (2021) (“The mere presence of an inaccuracy in an internal credit file, if it is not disclosed to a third party, causes no concrete harm.”). The statute demands this claim relate to preparing a consumer report. 15 U.S.C. § 1681e(b). So injuries would need to be traceable to that violation. E.g., Crowder v. Andreu, Palma, Lavin & Solis, PLLC, No. 2:19-cv-820-SPC-NPM, 2021 WL 1338767, at *7-8 (M.D. Fla. Apr. 9, 2021). While simple inaccuracies in Riley's file may be relevant to his separate § 1681i claim, they don't necessarily provide him standing on the credit-reporting issue. See Ramirez, 141 S.Ct. at 2208 (“And standing is not dispensed in gross; rather, plaintiffs must demonstrate standing for each claim that they press and for each form of relief that they seek.”). The lack of briefing only buttresses the decision this need not be addressed.

But if the Court must do so, there is no indication from the record that the 2018 Letter was in fact the consumer report required by § 1681i(a)(6)(B)(ii).[5] A reinvestigation notice may qualify as a consumer report. See Nunnally, 451 F.3d at 771-72, 776. But Equifax was free to provide a separate consumer report to Riley. See 15 U.S.C. § 1681i(a)(6)(B) (demanding a consumer report [a]s part of, or in addition to, ” the required notice). Put another way there is no way to say the 2018 Letter is a consumer report rather than a mere reinvestigation notice. See Nunally, 451 F.3d at 774 (noting a CRA can...

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