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Seckinger v. Equifax Information Services, LLC

United States District Court, S.D. Georgia, Savannah Division

March 27, 2018

MALLIE J. SECKINGER, Plaintiff,
v.
EQUIFAX INFORMATION SERVICES, LLC, Defendant.

          ORDER

          HON. LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT.

         Defendant Equifax Information Services, Inc. moves for summary judgment on Mallie Seckinger's Fair Credit Reporting Act (FCRA) claims. Doc. 44. Seckinger opposes. See docs. 46, 50, & 54. The dispute, however, rests largely on Seckinger's misunderstanding of the relevant legal principles and procedures. Since Seckinger is proceeding pro se, some clarifying foundational discussion of those principles and procedures is warranted.

         I. BACKGROUND[1]

         In 2013, Seckinger noticed a change in the credit available to him. See doc. 47 at 2, ¶ 5 (Seckinger's Statement of Material Facts). He investigated, by requesting information from Equifax, and discovered that his credit information included a loan whose legitimacy was "formally in dispute since May 8, 2013." Id. at 2, ¶¶ 6, 9. He notified Equifax of the dispute, pursuant to the provisions of 15 U.S.C. § 168li, in January 2014. Id. at 3, ¶ 10; doc. 43 at 2, ¶ 8 (Equifax's statement of material facts reflecting receipt of dispute letter on January 19, 2014). He requested further "reports"[2] from Equifax in 2014, and in each Equifax included the disputed loan but failed to include the FCRA-required notice of consumer dispute. Id. at 3, ¶¶ 11, 13; see also 15 U.S.C. § l68li(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."). He filed this action in November 2015. See doc. 1 (Complaint).

         In 2016, Seckinger applied for a credit card from Wells Fargo Bank, and Equifax provided Wells Fargo a report that, he contends, “failed 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, ¶ 18. Allegedly because of that failure, his application was denied. Id. at 5, ¶ 19. Wells Fargo notified him of its decision in a letter ("the Letter"). Id.[3]

         Equifax contends that it is entitled to summary judgment because Seckinger has failed to offer any evidence that it generated a "consumer report, " as defined by the FCRA, containing information about the disputed loan without the required dispute notice. See doc. 44 at 8. Since it contends there is no evidence of any violation of the FCRA, there is clearly no evidence of a willful violation. Id. at 13-14. Seckinger contends that the Wells Fargo Letter raises a jury question whether (if it does not prove outright that) Equifax provided a report without noting the dispute. Doc. 46 at 12-13 (arguing the Letter "establishes the fact that Equifax [p]rovided at least 1 Credit Report containing the information 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."). He also contends that the information that Equifax provided to him (the Equifax Information) both itself constitutes a report without a dispute reference and also reflects deficient reports to third parties. 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." Fed.R.Civ.P. 56(a). 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., 477 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." Anderson, 477 U.S. at 248. It, therefore, must be supported by evidence that will be 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 . . . ." Anderson, 477 U.S. at 248. "The materiality inquiry is independent of and separate from the question of the incorporation of the evidentiary standard into the summary judgment determination. That is, while the materiality determination rests on 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 (15 U.S.C. § 1681, et seq.) requires that "consumer reporting agencies adopt reasonable procedures" to ensure "proper utilization" of information used in consumer credit transactions. 15 U.S.C. § 1681. Among 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] or a clear and accurate codification or summary thereof." 15 U.S.C. § 168li(b). "The FCRA creates a private right of action against consumer reporting agencies for the negligent, see 15 U.S.C. § 1681o, or willful, see 15 U.S.C. § 1681n, violation of any duty imposed under the statute." Collins v. Experian Info. Sols., Inc., 775 F.3d 1330, 1333 (11th Cir. 2015) (citing Safeco Ins. of Am. v. Burr, 551 U.S. 47, 52 (2007)). Willfulness, in the FCRA context, implies a state of mind that encompasses both knowing and reckless violations. See Safeco Ins. Co. of Am., 551 U.S. at 57-58.

         Seckinger alleges that Equifax willfully violated the FCRA's provisions concerning consumer-disputed information. He explains that his "law suit specifically focuses upon and is limited to the failure of the . Defendant to 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).[4] Equifax contends that, 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

         Seckinger contends, first, that the Wells Fargo Letter "establishes as fact that Equifax [p]rovided at least 1 [c]redit [r]eport 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. Doc. 49 at 5. Seckinger strenuously objects to Equifax's evidentiary challenge. See doc. 50 at 5 ("It is no longer a question of whether the evidence exists, 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." (spelling, emphasis, and bracketed material in .original)). Seckinger's outrage is misplaced.

         1. Admissibility

         The question Equifax raises is whether the Wells Fargo Letter is admissible as evidence. Inadmissible evidence is not properly part of the record for summary judgment purposes. See, e.g., Charles Alan Wright, Arthur R. Miller, et al., 10A Fed. Prac. & Proc. Civ. § 2724 (4th ed. 2017) (extent of summary judgment record depends, in part, on whether particular material is admissible evidence). The question, therefore, is whether Seckinger has presented the Letter in a way that allows the Court (and ultimately a jury) to consider it. That question touches upon, but certainly is not limited to, the Letter's authenticity. Cf. doc. 50 at 6 (responding to Equifax's objection that the Letter is inadmissible by stating: "The plaintiff can only conclude, and rightfully so, that Defendant is accusing the plaintiff of counterfeiting the Adduced Wells Fargo document . . . ."). Admissibility depends not upon the opinion of defendant's 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 trial or hearing" offered "in evidence to prove the truth of the matter asserted in the statement." Fed.R.Evid. 801 (a)-(c) (defining "hearsay" and constituent terms). Obviously the Letter is not trial testimony. 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 information contained in a report provided to it by Equifax) . 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 (often called a credit report) from . . ." Equifax). The Letter's statements, therefore, are hearsay, and "[h]earsay ...


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