Stroud v. Bank of Am.
| Decision Date | 13 August 2012 |
| Docket Number | Case No. 11–22489–CIV. |
| Parties | Pascal A. STROUD, Plaintiff, v. BANK OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
OPINION TEXT STARTS HERE
Pascal A. Stroud, Miami, FL, pro se.
Justin M. Sizemore, Reed, Smith, LLP, Richmond, VA, Ernest Henry Kohlmyer, III, Urban Thier Federer & Chinnery, P.A., Orlando, FL, Erik Grohmann, Strasburger & Price, Frisco, TX, Lynsey M. Barron, Jones Day, Atlanta, GA, James Randolph Liebler, Marc Thomas Parrino, Liebler Gonzalez & Portuondo, P.A., Franklin Gordon Cosmen, Jr., Quintairos Prieto Wood & Boyer P.A., Maria Helena Ruiz, Kasowitz, Benson, Torres & Friedman LLP, Miami, FL, for Defendants.
ORDER GRANTING DEFENDANTS' SUMMARY JUDGMENT MOTIONS
THIS CAUSE is before the Court on the motions for summary judgment filed by Defendants Trans Union, LLC [ECF No. 74], Bank of America (n/k/a FIA Card Services, N.A.) [ECF No. 80], Experian Information Solutions, Inc. [ECF No. 81], and CACH, LLC [ECF No. 83].1 The Court has reviewed the motions, Plaintiff Pascal A. Stroud's responses [ECF Nos. 95–96; 100–107; 118; 128–129; 132–133; 135–136] and the Defendants' reply memoranda [ECF Nos. 110; 111; 113; 115; 137]. The Court also held an omnibus, multi-hour hearing and is otherwise familiar with the filings and record of this case.
For the reasons below, the Undersigned GRANTS the summary judgment motions, CANCELS all pending deadlines and the trial, and CLOSES this case.
On July 12, 2011, Stroud filed a thirteen-count lawsuit under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA) and Florida law against the Defendants. Stroud's claims all stem from his efforts to force Defendants to investigate and correct what he contends is inaccurate information on his credit reports resulting from identity theft. Stroud contends that Defendants' actions have caused him a credit denial, a negative credit reputation, and physical and mental injuries.
The Court must construe Stroud's complaint liberally because he is proceeding pro se. H & R Block E. Enters., Inc. v. Morris, 606 F.3d 1285, 1288 n. 1 (11th Cir.2010). To that end, it appears that Stroud's specific claims are as follows: 2
a. BANK OF AMERICA—COUNTS I & II
Stroud alleges claims against BOA for violation of its duties under the FCRA, 15 U.S.C. § 1681s–2(b), as a furnisher of information, for failing to conduct a reasonable investigation of Stroud's credit reporting dispute and for providing inaccurate information to credit reporting agencies under Florida defamation law.3
b. CACH—COUNTS III & IV
Stroud alleges claims against CACH for violation of its duties under the FCRA, 15 U.S.C. § 1681s–2(b), as a furnisher of information, for failing to conduct a reasonable investigation of Stroud's credit reporting dispute and for providing inaccurate information to credit reporting agencies under Florida defamation law.
c. TRANS UNION—COUNTS V, VI–A, VI–B, VII, & VIII–A
Stroud alleges five claims against Trans Union. He contends that Trans Union violated: (1) 15 U.S.C. § 1681i(a)(2)(A) by failing to provide all relevant details of Stroud's dispute to the furnisher of the disputed information and § 1681i(a)(5) by mishandling allegedly unverifiable information; (2) § 1681i(c) by failing to place a notice of the dispute in his credit report; (3) § 1681h(e) by negligently or willfully including false information in his credit report; (4) § 1681g(a) by failing to provide Stroud with a credit report upon his request; and (5) Florida defamation law by providing an inaccurate credit report.
d. EXPERIAN—COUNTS VIII–B, IX, X, & XI
Stroud alleges four claims against Experian. Instead of providing specific factual allegations against Experian, Stroud simply states that he “incorporates the proceeding allegations by reference” and then references paragraphs from his allegations against Trans Union.4 Nonetheless, he states that his claims against Experian are based on 15 U.S.C. §§ 1681i, 1681h(e), 1681g, and Florida defamation law.
Summary judgment is appropriate when the pleadings, depositions, affidavits and exhibits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a), (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue of fact is “material” if it is a legal element of the claim under applicable substantive law which might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997).
An issue of fact is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen, 121 F.3d at 646. On a motion for summary judgment, the court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party and determine whether the evidence could reasonably sustain a jury verdict for the non-movant. Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548;Allen, 121 F.3d at 646.
The Eleventh Circuit “has consistently held that conclusory allegations without specific supporting facts have no probative value.” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.2000) (citing Evers v. G.M. Corp., 770 F.2d 984, 986 (11th Cir.1985)). “ ‘[O]ne who resists summary judgment must meet the movant's affidavits with opposing affidavits setting forth specific facts to show why there is an issue for trial.’ ” Leigh, 212 F.3d at 1217 (quoting Gossett v. Du–Ra–Kel Corp., 569 F.2d 869, 872 (5th Cir.1978)). A party's self-serving affidavit that contains only unverified, conclusory allegations does not create a genuine issue of material fact. Lucas v. State Farm Fire & Cas. Co., 864 F.Supp.2d 1346, 1356–57 (M.D.Ga.2012) (citing Evers, 770 F.2d at 986).
The Court will address Stroud's claims on a defendant-by-defendant basis.
Stroud's only FCRA claim is that BOA failed to conduct a reasonable investigation pursuant to 15 U.S.C. § 1681s–2(b) of the FCRA.515 U.S.C. § 1681s–2(b) defines the duties of a furnisher of information as follows:
(b) Duties of furnishers of information upon notice of dispute
(1) In general
After receiving notice pursuant to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall—
(A) conduct an investigation with respect to the disputed information;
(B) review all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title;
(C) report the results of the investigation to the consumer reporting agency;
(D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and
(E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under paragraph (1), for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly—
(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of information.
Put another way, to avoid summary judgment on this claim, Stroud must show there is a genuine issue of material fact evidencing that Bank of America:
(1) failed to conduct an investigation with respect to the disputed information; (2) failed to review all relevant information provided by the consumer reporting agency pursuant to § 1681i(a)(2) of the FCRA; (3) failed to report the results of the investigation to the consumer reporting agency; or, (4) if an item of information disputed by a consumer is found to be inaccurate, incomplete, or cannot be verified after any reinvestigation, failed to modify, delete, or permanently block the reporting of that item of information.
Howard v. DirecTV Grp., Inc., No. CV 109–156, 2012 WL 1850922, at *4 (). A furnisher of information is entitled to summary judgment if it conducts a reasonable investigation based upon the information regarding the dispute provided by the credit reporting agency, concludes that there is no evidence its information is inaccurate, and accurately reports its findings to the credit reporting agencies. Westra v. Credit Control of Pinellas, 409 F.3d 825 (7th Cir.2005).
15 U.S.C. § 1681s–2(b) does not define what constitutes a “reasonable” investigation. But 15 U.S.C. § 1681s–2(a)(1)(A)-(D) provides that a furnisher of information may not furnish information to a credit reporting agency if it “knows or has reasonable cause to believe that the information is inaccurate” and that “reasonable cause” “means having specific knowledge, other than solely allegations by the consumer, that would cause a reasonable person to have substantial doubts about the accuracy of the information.” See also Groves v. U.S. Bank, No. 8:10–CV–2665–T–17TGW, 2011 WL 2192821, at *6 (M.D.Fla. Jun. 6, 2011) ().
Moreover, it is apparent that “what is a reasonable investigation by a furnisher may vary depending on the circumstances,” that reasonableness is judged by an “objective standard,” and that “the burdenof showing the investigation was unreasonable is on the plaintiff.” Chiang v. Verizon New England Inc., 595 F.3d 26, 38 (1st Cir.2010). To prevail, a plaintiff must also demonstrate that the result of the investigation was actually inaccurate. Id. at 37.
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