Seckinger v. Equifax Information Services, LLC, et al, No. 4:2015cv00304 - Document 56 (S.D. Ga. 2018)
Court Description: ORDER granting 44 Motion for Summary Judgment. Clerk is directed to prepare judgment closing case. Signed by Judge Lisa G. Wood on 3/27/18. (slt)
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Seckinger v. Equifax Information Services, LLC, et al Doc. 56 ... ''"-ED COURT U.S. DISTRICT BRUNSWICK Diy. tiniteb JBijitritt Court.21 m 2 55 for tfie ^otttfiem JSisitrict of ^aijannal) JBibisiion ^ ^ MALLIE J. SECKINGER, Plaintiff, CV 415-304 V. EQUIFAX INFORMATION SERVICES, LLC, Defendant. ORDER Defendant Equifax Information Services, Inc. moves for summary judgment on Mallie Seckinger's Fair Credit Reporting Act (FCRA) claims. & 54. The Doc. 44. dispute, misunderstanding procedures. clarifying of Since Seckinger opposes. however, the relevant Seckinger foundational rests is discussion See docs. 46, 50, largely legal proceeding of those on Seckinger's principles pro and se, some principles and procedures is warranted. I. BACKGROUND^ In 2013, Seckinger noticed a change in the credit available ^ In deciding the motion, the Court views the evidence and draws all reasonable inferences in favor of the nonmovant, Seckinger, Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000). AO 72A (Rev. 8/82) Dockets.Justia.com to him. Material from See doc. Facts). Equifax, 47 He and at 2, SI 5 (Seckinger's investigated, discovered by that Statement requesting his credit of information information included a loan whose legitimacy was ^^formally in dispute since May 8, 2013." Id. at 2, SISI 6, 9. He notified Equifax of the dispute, pursuant to the provisions of 15 U.S.C. § 16811, in January 2014. Id. at 3, SI 10; doc. 43 at 2, SI 8 (Equifax's statement of material facts reflecting receipt of dispute letter on January 19, 2014). He requested further ^'reports"^ from Equifax in 2014, and in each Equifax included the disputed loan but failed dispute. to include the FCRA-required notice of consumer Id. at 3, SISI 11, 13; see also 15 U.S.C. § 16811(c) (requiring, after a notice of dispute is provided by a consumer, that ^'any subsequent consumer report containing the information in question [shall] clearly note that it is disputed by the consumer and provide either the consumer's statement or a clear and accurate codification or summary thereof."). action in November 2015. In ^ 2016, He filed this See doc. 1 (Complaint). Seckinger applied for a credit card from Wells As discussed below, the proper FCRA-characterization of the information Equifax provided to Seckinger is disputed. Outside of the technical discussion of that dispute, the Court uses the term ^^report" colloquially — referring generally to the compilation of information related to a consumer's creditworthiness, whether provided directly to the consumer or to some third party. Fargo Bank, and Equifax provided Wells Fargo a report that, he contends, ailed to clearly note that the loan in question was disputed . . . and failed to provide either [his] statement or a clear and accurate codification or summary thereof." Doc. 47 at 5, SI 18. Allegedly because of that failure, his application was denied. Id. at 5, SI 19. Wells Fargo decision in a letter (^'the Letter"). notified him of its Id.^ Equifax contends that it is entitled to summary judgment because Seckinger generated a containing has failed ''consumer information to report," about offer as the any defined disputed required dispute notice. See doc. 44 at 8. there any is clearly no no Seckinger question evidence evidence of of a violation willful contends that the whether (if it does Wells of the Letter by loan the the it FCRA, without the FCRA, there violation. Fargo that Since it contends Id. Letter at raises is 13-14. a jury not prove outright that) Equifax provided a report without noting the dispute. (arguing evidence "establishes the Doc. 46 at 12-13 fact that Equifax [pjrovided at least 1 Credit Report containing the information ^ The alleged violations occurring after the Complaint was filed in 2015 are not before the Court. The Court denied Seckinger's motion to amend his Complaint. See doc. 38. However, as explained below, Seckinger contends that the Letter is evidence that Equifax had not, as of its date, included information about his dispute of the loan on his credit report. Accordingly, the Court considers the letter's evidentiary value, if not the alleged violation. in question subsequent to receiving Plaintiff's Dispute Statement without clearly noting that it is disputed and Equifax also failed to provide either the consumer's statement or a clear and accurate codification or summary thereof in subsequent credit reports."). Equifax provided to constitutes a He also contends that the information that him (the report without Equifax a Information) dispute both reference reflects deficient reports to third parties. itself and also See doc. 46 at 9 (relying on report from Equifax to Seckinger, dated December 4, 2014). II. ANALYSIS Summary judgment is properly granted when ^^the movant shows / that there is no genuine dispute as to any material fact and [he] is entitled to judgment as a matter of law." P. 56(a). Fed. R. Civ. Its intent is ^'to isolate and dispose of factually unsupported claims or defenses. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Anderson v. Liberty Lobby, Inc., All U.S. 242, 249 (1986). A factual dispute is ^genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." U.S. at 248. will be Anderson, All It, therefore, must be supported by evidence that admissible at trial. See Fed. R. Civ. P. 56(c)(2) (allowing objection ''that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."). The admissibility of evidence is determined by the Federal Rules of Evidence. See Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997) (^^the admissibility of evidence is a procedural issue, and therefore is governed by the Federal Rules of Evidence."). Substantively, a factual dispute is ^'material" if it concerns ^^facts that might affect the outcome of the suit under the governing law . . . ." materiality inquiry is Anderson, independent of All U.S. at 248. and separate ''The from the question of the incorporation of the evidentiary standard into the summary judgment determination. materiality determination rests on That the is, while the substantive law, it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Id. Thus, the Court must look to the FCRA to determine what facts are material to Seckinger's claim. The FCRA "consumer ensure credit (15 reporting "proper U.S.C. § agencies utilization" transactions. 15 1681, adopt of et seq.) reasonable information U.S.C. § 1681. requires that procedures" used in Among to consumer various particular requirements is the obligation, triggered in part by a consumer's notice of disputed credit report information, to note clearly "in any subsequent consumer report containing the information in question, . . . that it is disputed by the consumer and provide either the consumer's statement [regarding the dispute] thereof." right of or a clear and accurate 15 U.S.C. § 1681i{b). action against codification or summary ''^The FCRA creates a private consumer reporting agencies for the negligent, see 15 U.S.C. § I68I0, or willful, see 15 U.S.C. § 1681n, violation Collins V. of Experian any Info. duty imposed Sols., Inc., under 775 F. the 3d statute." 1330, 1333 (11th Cir. 2015) (citing Safeco Ins. of Am. v. Burr, 551 U.S. 47, 52 (2007)). state of Willfulness, in the mind violations. that encompasses FCRA both context, implies knowing and a reckless See Safeco Ins. Co. of Am., 551 U.S. at 57-58. Seckinger alleges that Equifax willfully violated FCRA's provisions concerning consumer-disputed information. explains that limited to his the ^^law suit failure specifically focuses of the . Defendant to upon the He and is include the consumer[']s ^statement of dispute' in subsequent credit reports of which the Defendant is clearly in willful noncompliance with the law." ^ Doc. 3 at 8 (emphasis added).^ Equifax contends that. This Court construes pro se pleadings liberally, but that liberality does not allow it to act as de facto counsel. See, e.g.. Lacy v. BP P.L.C., F. App'x , 2018 WL 500152 at * 1 (11th Cir. Jan. 22, 2018) (citing, inter alia, Campbell v. Air Jamaica Ltd., 760 F. 3d 1165, 1168-69 (11th Cir. 2014)). In particular, it may not ^rewrite a deficient pleading in order to sustain an action.'" Id. (quoting Campbell, 760 F. 3d at 1169)). While it is not absolutely clear to the Court that the identified theory exhausts the possible theories of Equifax's 6 because he has offered no evidence that it generated any consumer report, it could not have willfully failed to include his notice of dispute in any such report. Doc. 44 at 13-14. A. The Wells Fargo Letter Se.ckinger contends, first, that the Wells Fargo Letter ^^establishes as fact that Equifax [p]rovided at least 1 [c]redit [rjeport containing the information in question subsequent to receiving [p]laintiff's Dispute Statement without clearly noting that it is disputed by the consumer . . . ." Doc. 46 at 12. Equifax responds that the Letter is inadmissible hearsay. 49 at 5. Doc. Seckinger strenuously objects to Equifax's evidentiary challenge. See doc. 50 at 5 whether evidence the exists, {''It is no longer a question of it is now a question of if the evidence meets Local Rules [based upon the Defendant's Opinion], lacks a citation to the record [ignoring the Declaration of Sally Seckinger], weather it is a narrative or not [based upon the Defendant's opinion], weather the adduced documents are authentic by declaration of affidavit and the question as to IF the adduced documents should be stricken from the record and not considered by the Court." material in .original)). (spelling, emphasis, and bracketed Seckinger's outrage is misplaced. liability under § 1681i, Seckinger's language leaves no room to doubt his limiting intent. 1. Admissibility The question Equifax raises is Letter is admissible as evidence. whether the Wells Fargo Inadmissible evidence is not properly part of the record for summary judgment purposes. See, e.g., Charles Alan Wright, Arthur R. Miller, et al., lOA Fed. Prac. & Proc. Civ. § 2724 record depends, admissible in has Court (and presented ultimately a upon, but ed. part, evidence). Seckinger touches (4th on Letter jury) certainly doc. objection the Letter particular question, the Cf. (extent of summary judgment whether The authenticity. that 2017) to is 50 therefore, is a allows way that consider it. not at is in limited 6 material to, (responding inadmissible by is whether the That question the to Letter's Equifax's stating: "The plaintiff can only conclude, and rightfully so, that Defendant is accusing the plaintiff of counterfeiting the Adduced Wells Fargo document . . . ."). opinion of defendant's Admissibility depends not upon the counsel, or even this Court's Local Rules, but upon the Federal Rules of Evidence. The Federal Rules of Evidence define "hearsay" as "a statement" made by a "declarant" who is not "testifying at the current truth trial of the 801(a)-(c) or hearing" offered "in matter asserted (defining in the "hearsay" evidence statement." and prove Fed. constituent Obviously the Letter is not trial testimony. 8 to R. the Evid. terms). Equally clear is Seckinger's intent that its statements constitute proof of the matters asserted (i.e., that Wells Fargo denied him credit on or near the Letter's September 2016 date based upon contained in a report provided to it by Equifax). information See doc. 46 at 12-13 (arguing that the Letter creates a dispute of material fact); id. at 15 (Letter's statement that denial of credit application was ^^based in whole or in part on information in a consumer report Equifax). (often called a credit report) from . . ." The Letter's statements, therefore, are hearsay, and ^Mh]earsay is not admissible," unless a federal statute, the Rules of Evidence themselves, or ^^other rules prescribed by the Supreme Court" provide an exception. There hearsay. Against are numerous Fed. R. Evid. 802. exceptions to the prohibition on See, e.g.. Fed. R. Evid. 803 (Exceptions to the Rule Hearsay — Regardless of Whether the Declarant is Available as a Witness); Fed. R. Evid. 804 (Exceptions to the Rule Against Hearsay — When the Declarant is Unavailable as a Witness); Fed. R. Evid. 807 (Residual Exception). Neither party has presented any evidence or argument that the Letter's author (a Mr. Dee, Senior Vice President of Operations) is unavailable as a witness. Wells Fargo's Loan See doc. 50 at 6-9 (responding to Equifax's challenge of the Wells Fargo Letter); see also Fed. R. Evid. 804(a) (specifying criteria for finding a declarant ^^unavailable"). Thus, the Letter's admissibility depends upon the application of a general exception or the residual exception.^ Among the general exceptions to the hearsay prohibition, the most likely to be applicable to the Letter is the exception for records of a regularly conducted' business activity, the socalled ^^business records exception." Fed. R. Evid. 803(6). In order for that exception to apply, however, the proponent must show that: (1) ^''the record was made at or near the time [of the fact stated] by — or from information transmitted by — someone with knowledge; (2) the record was "kept in the course of a regularly "making conducted the record activity was a of regular a business . . and (3) practice of that activity." Seckinger does not offer any argument concerning the application of a hearsay exception to the Letter. See doc. 50 at 6 ("The Plaintiff can only conclude, and rightfully so, that the Defendant is accusing the Plaintiff of counterfeiting the Adduced Wells Fargo document . . . ."). As discussed above, the issue is not whether Seckinger "counterfeited" the document but whether he has provided the foundation for its admissibility. The burden to satisfy the requirements of an exception to the rule against hearsay is on the proponent of the evidence. See, e.g.. United States v, Kennard, 472 F.3d 851, 855 (11th Cir. 2006). Because he misunderstands Equifax' objection, Seckinger has not asserted an exception, much less provided the basis for its application. Based solely on that omission, then, the Letter might be deemed inadmissible. However, given that he is acting pro se, the Court must liberally construe his response. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curaim) ("Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed."). The Court thus considers whether he has provided sufficient foundation, despite his misunderstanding of the issue, to establish the application of a hearsay exception. 10 Fed. R. Evid. 803(6)(A)-(C). Each of those facts must be established by the testimony or certification of the ''custodian" of the record. Fed. R. Evid. 803(6)(D). Equifax points out, and Seckinger identifies nothing that contradicts, record.® that no adequate foundation is apparent in the See doc. 49 at 5 (noting that Seckinger "did not obtain declarations from Wells Fargo Bank to authenticate or explain the document, and discovery has now closed."); doc. 50 at 7-8 (responding that "there to Wells Fargo unambiguous as language interpretation beings."). the relying is no need document which on is the speaks not have declarations from for itself open unreliable to after memories in the of clear fact human In the absence of an adequate foundation to apply the business records exception, the Letter remains inadmissible hearsay. ® Seckinger refers to his wife Sally Seckinger's declaration in his response. See, e.g., doc. 50 at 8. Since Mrs. Seckinger does not have direct personal knowledge of the circumstances of the Letter's preparation, she can't establish the necessary foundation. Affidavits or declarations, after all, "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). "Additionally, the affidavit . . . must state the basis for such personal knowledge." Duke v. Nationstar Mortg., L.L.C., 893 F. Supp. 2d 1238, 1244 (N.D. Ala. 2012) (citing Bruce Const. Corp. v. United States, 242 F.2d 873, 877 (5th Cir. 1957)). In the absence of such a statement, indeed in the absence of any apparent basis for her personal knowledge of the relevant facts, Seckinger's declaration cannot provide the requisite foundation for the hearsay exception. 11 The residual exception to the hearsay rule allows admission of hearsay statement statements has equivalent not otherwise ^^circumstantial to the excepted guarantees guarantees of afforded if: (1) the trustworthiness" by the specified exceptions, (2) it is offered as evidence of a material fact, (3) ^'it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts[,]" and (4) admission ^'will best serve the purposes of these rules and the interests of justice." Fed. R. Evid. hearsay 807(a). exception to ^Congress be used circumstances.'" intended very rarely, the and residual only in exceptional United Techs, Corp. v. Mazer, 556 F.3d 1260, 1279 (11th Cir. 2009) (quoting United States v, Ingram, 501 F.3d 963, 967 (8th Cir. 2007)). The Court might generously construe concerning the difficulty asserting ^^circumstantial Nevertheless, the of Seckinger's arguments counterfeiting guarantees residual exception of the Letter as trustworthiness." cannot apply here because he might have secured the necessary factual foundation for its admission under the business records exception (assuming such foundation was possible at all), but did not. neither more probative "than any other evidence that Thus, it is which the proponent can procure through reasonable efforts," nor does it possess circumstantial guarantees 12 of trustworthiness ^^equivalent" to liberally the business construing records Seckinger's exception. response, the Since, even Court can identify no applicable exception to the hearsay rule, it is not admissible and thus not part of the summary-judgment record. 2, Substance Even if the create a genuine Letter were admissible, however, it does dispute of material fact. not To create such a dispute, it must support the inference that Equifax disclosed information about the disputed about Seckinger's dispute. indicates several Seckinger's and omitted It simply does not. reasons application. loan It for Wells is possible On its face, it Fargo's that information denial those of reasons include information about the disputed loan without the required dispute notice. In the absence of any contrary evidence, the Court might give Seckinger the benefit of such an inference.^ ^ Seckinger has submitted a declaration asserting that in ^^September 2016, Equifax provided Wells Fargo Bank a Credit Report containing the loan information in question. Apparently^ Equifax failed to clearly note that the loan was disputed by the consumer and failed to provide my statement." Doc. 51 at 22 (emphasis added). Mrs. Seckinger provided a declaration including the same assertion verbatim. Doc. 48 at 5. However, as discussed above, there is no foundation for either Mr. or Mrs. Seckinger's personal knowledge of the grounds for Wells Fargo's denial of Mr. Seckinger's credit card application. See supra n. 2. It is not clear, therefore, whether their interpretive assertions can be considered at all. Considering the Letter's plain text, it is far from ^'apparent" that the disputed loan factored into Wells Fargo's decision. See doc. 46 at 15-16 (stating that the credit 13 However, Equifax has offered evidence that precludes it. Equifax has submitted an affidavit from one of its Legal Support Associates, stating (based on the affiant's review of Equifax's records concerning Mr. Seckinger) that ^'[o]n January 26, 2015, Equifax deleted the Seckinger's Equifax credit file." [disputed l]oan from Mr. Doc. 43-1 at 2, 5 13. The Letter indicates that the relied-upon credit score was ^^created" on September 6, 2016. Doc. 46 at 16. Given Equifax's application was denied ^'for the following reasons: Late payments on accounts with other creditors (We look for a history of ontime payments)[;] Lack of recently reported open satisfactory accounts on your credit report[; and] Insufficient number of satisfactory accounts on credit report[.]"). It indicates that Wells Fargo considered Seckinger's numerical credit score, as determined by Equifax. Id. at 16. But it notes that the ^Mk]ey factors" in the report ^'that negatively affected [his] credit score [were]: [d]erogatory public record or collection filed[,] [p]roportion of balances to credit limits is too high on revolving accounts[,] [t]ime since delinquency is too recent or unknown [, and] [t]oo many consumer finance company accounts[.]" Id. Nothing on the face of the Letter, therefore, states that the disputed loan was included in the report and that the notice of dispute wasn't. As Equifax points out, Seckinger could have directed discovery to Wells Fargo to illuminate the exact contents of the report it considered, see, e.g.. Fed. R. Civ. P. 30 (a)(1) (allowing a party to '""by oral questions, depose any person," and that deponent's attendance may be compelled by subpoena); 31(a)(1) (allowing deposition by written questions and permitting deponent's attendance to be compelled by subpoena); 34(c) (allowing a party to compel a nonparty to produce documents or permit their inspection), but he chose to rest his case on ^Mt]he language contained within the [Letter which] is clear and concise." Doc. 50 at 7. The Letter's language may be ^'clear and concise," but, unexplained, it does not support the conclusion Seckinger seeks to draw from it. 14 employee's unrebutted testimony that reference to the loan, disputed or not, was removed in January 2015, it could not have factored into Wells Fargo's decision in September However, since the Letter's substance is inadmissible 2016. hearsay, the Court need not grapple with the precise inferences that may permissibly be drawn from the Letter itself. B. The Equifax Information Seckinger denied argues because he that has summary provided judgment an ^'Equifax should Generated Report of the Plaintiff dated December 4, 2014." That document contains information indication of the dispute. Id. about also the be Credit Doc. 46 at 9. loan, but no It also, he argues, ^^shows that there were no less than 17 Credit Reports . . . issued by the Defendant to various third parties and/or institutions during the time of Equifax receiving [sic] the Plaintiff's statement of dispute on January 19, 2014 and the . . . date" of the report issued to him. Id. at 9. 1. The December 4, 2014 Report As to the document itself, Equifax argues that since it was issued to constitute required.® Seckinger a and ^'consumer not to report" for Doc. 49 at 7-10. a third which a party, dispute it cannot notice is It also disputes his construction Equifax also asserts an evidentiary objection to the report. 15 of the information it contains as reflecting reports to third parties. Id. asserted at 10-14. distinction Seckinger between replies ^^consumer reports" that Equifax's and ''consumer disclosures" amounts to an "introduc[tion] of synonyms to divert attention "Credit from the Report." irrefutable" Doc. 50 at fact 10. that He the relies document is heavily on a his application of the Federal Trade Commission (the FTC) website's description of characterization. a "credit report" in support of his See id. at 11-13. First, Seckinger's reliance on the FTC's description of a "credit report" is misplaced. A federal agency's See doc. 49 at 4-5. It points out that this document too is "wholly unauthenticated by declaration or affidavit." Id. at 4. Seckinger objects to the challenge, but as in the case of the Letter, he fails to address the real evidentiary issue. See doc. 50 at 15-18. The focus of Equifax's argument (although they have not cited to it) is Fed. R. Evid. 901, which requires the proponent of a piece of evidence to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). The Court is not convinced that the document would be admissible, but also cannot say that it would not. See, e.g.. In re Intern. Mgmt. Assocs., LLC, 781 F.Sd 1262, 1267 (11th Cir. 2015) (noting that the "authentication burden . . . is a light one" that can be met "with circumstantial evidence of the authenticity of the underlying documents"). To the extent that Seckinger relies on its contents, it is also unable to identify any hearsay exception which would allow the statements contained in the document, even if the document were otherwise admissible, to be admitted. It is possible, however, that such statements would be non-hearsay statements by an opposing party. See Fed. R. Evid. 801(d)(2). Since Equifax has responded substantively to Seckinger's arguments and in consideration of his pro se status, the Court will not rest its decision on the evidentiary issues. 16 interpretations empowered Court to is ambiguous enforce are required interpretations (i.e., of ""^a are give embodied in (2000); see e.g.. Defense Council, Inc., statutes to that which ^Meference" them adjudication Christensen also, in entitled to formal rulemaking"). terms effect) agency's or it (i.e., when formal is the those actions notice-and-comment v. Harris Cnty., 529 U.S. 576, 587 Chevron 467 U.S.A, v. Natural U.S 837, 842-45 (1984) Resources (discussing principles courts should apply to determine deference owed to an agency's interpretation of a statute it administers). Informal agency interpretations are not entitled to such deference. e.g., Christensen, 529 U.S. at 586-87. See, "Instead, interpretations contained in formats such as opinion letters are ^entitled to respect' . . ., but only to the extent that those opinions have ^the power to persuade,' [cit.]." (quoting Skidmore v. (citation omitted). only entitled ambiguous. to Swift & Co., 323 U.S. 134, Id. at 587 140 (1944)) Even then, an agency's interpretation is deference when the term interpreted is See Chevron, U.S.A., Inc., 467 U.S. at 842-43 ("If the intent of Congress is clear [i.e., clearly expressed in the statute's text], that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."). There is no evidence that the website Seckinger relies upon 17 is (or is even based upon) the FTC's formal interpretation of the FCRA. See doc. without citation adjudication). to 50 at 24-28 (printout any formally adopted of FTC regulation webpage, or formal As such, that interpretation is relevant only to the extent that it has ^'the power to persuade," which here is not much. As discussed below, courts have considered the statutory language at issue,® and balanced against that authority the FTC's website has vanishingly little power to persuade. Seckinger distinction contends between that a Equifax' ^^consumer very invocation report" and a of the ^^consumer disclosure" raises a question of fact, as he proposes to prove that the document is a "report" within the meaning of the FCRA. Doc. 46 at 10-11. is a legal — As Equifax rightly points out, however, there not factual — distinction between reports prepared for third parties and reports prepared for the consumer himself. See (discussing 15 report," and doc. 49 at 10; CollinSf U.S.C. § 1681a(d)(1)'s noting that "a 775 definition F.3d at 1334 of "consumer ^consumer report' is communicated ® The fact that courts have undertaken to construe the statute's text implies that there is no ambiguity, as would require the Court to rely on administrative interpretation. After all, agency interpretation is only relevant "if the statute is silent or ambiguous with respect to the specific issue . . . ." Chevron^ U.S.A., Inc., 467 U.S. at 843. The judicial analysis suggests that, while perhaps complicated and confusingly articulated, the statutory definition of "credit report" and its relation to disclosures to consumers ambiguous. 18 themselves is not [to a potential third party creditor] by the consumer reporting agency . . Spector v. Equifax Info, Servs., 338 F. Supp. 2d 378, 379 (D. Conn. 2004) (discussing contents of a consumer's ^^credit file," and noting that ^'[w]hen released to a creditor, the file is termed a released to a ^credit report' or ^consumer report'; when consumer, disclosure.'"); Larson v. the file is termed a ^consumer Trans Union, LLC, 2013 WL 5665629 at *4 (N.D. Cal. Oct. 15, 2013) (report prepared for a consumer is ^^something separate and distinct from a ^consumer credit report' prepared for third parties" under the FCRA and that ^'[cjourts expressly caution against conflating these two types of documents . . . ."); see also Cousin v. Trans Union Corp., 246 F.3d 359, 367-68 (5th Cir. 2001) (recognizing that the argument that reports issued to consumer might not qualify as ^^consumer reports" '^may because court). the be valid," but issue The was not distinction documents are called. declining properly applies to consider presented to regardless of argument the what trial the Compare Fuges v. Sw. Fin. Servs., Ltd., 707 F.3d 241, 246 n. 7 (3d Cir. 2012) (recognizing distinction between ^'consumer report" and ^'credit report"), with Johnson v. Equifax, Inc., 510 F. Supp. 2d (recognizing distinction between 638, 645 (S.D. Ala. 2007) consumer report" and ^^consumer disclosure"). Since the information was provided to Seckinger, and not a 19 third-party potential creditor, it cannot consumer report. Hibernia Nat'1 itself constitute a Johnson, 510 F. Supp. at 645 (citing Hyde v, Bank, 861 F.2d (^^Reports prepared solely for ^consumer reports' under the 446, the 449 (5th consumer FCRA."). do Cir. not Whether 1988)) constitute or not it includes a notice of Seckinger's dispute, therefore, the report itself does not create a dispute of material fact as to Equifax's alleged willful violation of the FCRA. 2. Evidence of further reports Seckinger also contends reflects other reports, provided to third parties, evidencing violations. See, e.g., doc. 46 at 11-12. that the document Equifax responds that the identified ^^reports," in fact, reflect ^"inquiries" to which it ^'it has no record of issuing consumer reports in response . . . ." at 11. Equifax supports this contention by its Doc. 49 employee's affidavit, stating that it ^^has no record of issuing a consumer report containing [information about January 19, 2014 to January 26, 2015." at 3-4, 14-15. Seckinger the disputed loan] from Doc. 49 at 14; doc. 43-1 replies that, since Equifax concedes it does not keep records concerning its responses to those inquiries, ''the Defendant cannot adduce, by its own admission, any evidence that it did not issue FTC defined Credit Reports to the seventeen inquires." Doc. 50 at 14; see also doc. 43 at 3, 1 14 (stating that "[a]s a general matter, Equifax 20 does not keep copies of consumer reports it issues . . . Seckinger misconstrues the bears the burden of proving burden of proof. his claims. A plaintiff Rule 56 expressly allows a summary-judgment movant to support his assertion of an absence of any genuine dispute of material fact by, among other avenues, ^'showing . . . that an admissible evidence to support adverse party cannot produce the fact." Fed. R. Civ. P. 56(c)(1)(B). '''The [summary-judgment] movant has the burden of showing there that is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.^' 477 U.S. at 256 (emphasis added). Anderson, In response to a properly supported summary judgment motion, "the plaintiff must present affirmative evidence" sufficient for a jury to return a verdict in his favor. Id. at 257 (emphasis added). When considered through the correct conceptual lens, Seckinger's argument fails. In order to prevail on his claim, Seckinger must present admissible evidence sufficient to allow a jury to find that Equifax disclosed the disputed loan sometime after it received his notice, but willfully failed notation along with the disclosure. to include the required It is not enough if Equifax reported the disputed loan, at some time, or if Equifax omitted the dispute disclosed. disclosure, if the loan itself was not also Given Seckinger's specification of his claim, it is 21 not even enough that Equifax disclosed the loan and failed to disclose the dispute -- he must also show that it acted with the requisitely culpable state of mind. The disputed information would simply not allow a jury to infer that Equifax willfully violated the FCRA. Seckinger only argues that the document ^'clearly shows that there were no less than 17 Credit Reports generated by the Defendant and passed on to various 3rd parties and institutions" during the relevant period. Doc. 46 at 11. There are, however, more than thirty ^^inquiries" listed in the cited section during the relevant period. 5ee id. at 26-27. Further, several of the entries appear to indicate Equifax-internal inquiries, while others appear to indicate inquiries to which only Seckinger's name and address would have been disclosed. doc. 49 at identifiers indicate 12-13 in which asserts or how. (discussing the of list the of the implications inquiries). entries See id,; see also makes the of the Seckinger ^^clear" prefix does showing not he From the document alone, no reasonable jury Both Seckinger and Equifax appear to refer to the number of companies who made the inquiries, but neither discusses the separate ^'inquiries" identified by date. Compare doc. 46 at 11, with doc. 49 at 10 (referring to ^'the seventeen inquiries listed" in the document). The apparent distinction between inquirers and inquiries, see doc. 46 at 26-27 (listing ''inquiries" and identifying both "Company Information" and "[i]nquiry [d]ateCs;" (emphasis added)), and the parties' failure to discuss it only emphasizes the attenuation of Seckinger's assertion of what the document "clearly shows." 22 could find in Seckinger's favor. Seckinger might still prevail if nothing directly precluded the inference that explained above, however, he Equifax's Equifax has ""no record of the wishes to employee's affidavit disposes of that possibility. that in The generating record draw. As unrebutted affidavit states a consumer report containing information about the [disputed loan] subsequent to its receipt of [Seckinger's notice of dispute], from January 19, 2014 through Seckinger January might have 26, 2015." investigated the inquiring companies listed. The record, those therefore, responses Seckinger's dispute. the The the 43-1 at information 4, f 15. reported to He has apparently not done so. contains disclosed Doc. no affirmative loan fact without that some evidence also that disclosing response to the indicated inquiries was provided is simply not enough to raise a genuine dispute of material fact. III. CONCLUSION For the reasons explained summary judgment is GRANTED. above, Doc. 44. Equifax's motion The Clerk of Court is DIRECTED to prepare an appropriate order closing this case. 23 for so ORDERED, this 27th day of March, 2018. HON.i^ISA GODBEYLWOOD, JUDGE UNITED STATES DISTRICT COURT SOUTHERN 24 A0 72A (Rev. 8/82) DISTRICT OF GEORGIA
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