United States District Court, S.D. Georgia, Savannah Division
MALLIE J. SECKINGER, Plaintiff,
EQUIFAX INFORMATION SERVICES, LLC, Defendant.
LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT.
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.
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" 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).
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").
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
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
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.
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.
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). 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.
The Wells Fargo Letter
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.
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.
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 ...