Baker v. Pinnacle Credit Union

TAMIKO BAKER, Plaintiff, v. PINNACLE CREDIT UNION Defendant.

Civil Action No. 1:19-CV-3455-MLB-JCF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

May 1, 2020

NON-FINAL REPORT AND RECOMMENDATION

This case is before the Court on the Motion For Summary Judgment filed by Defendant Pinnacle Credit Union ("Defendant" or "Pinnacle"). (Doc. 38). For the reasons discussed below, it is RECOMMENDED that Defendant's motion be DENIED.

Procedural History

On July 31, 2019, Plaintiff filed a Complaint alleging that defendants Equifax Information Services, LLC ("Equifax"), Wells Fargo Bank, N.A. ("Wells Fargo"), and Pinnacle violated the Fair Credit Reporting Act , 15 U.S.C. § 1681, et seq ("FCRA").¹ (Doc. 1). Pinnacle answered Plaintiff's Complaint on November 1,2019. (Doc. 18). Discovery ended on February 21, 2020. (Doc. 25 at 2). Pinnacle filed this motion for summary judgment on March 5, 2020. (Doc. 38). Plaintiff responded on March 19, 2020 (Doc. 40), and Pinnacle filed its reply on April 2, 2020 (Doc. 43). With briefing complete, the undersigned now considers the merits of Pinnacle's motion.

Factual Background

The facts, for summary judgment purposes only, are derived from Pinnacle's Statement of Undisputed Material Facts (Doc. 38-2 ("Def. SMF")) and uncontroverted record evidence. Plaintiff did not respond to Pinnacle's statement of undisputed material facts, and therefore those facts are deemed admitted. See LR 56.1B(2)(a)(2), NDGa. (providing that "[t]he Court will deem each of the movant's facts as admitted unless the respondent: (i) directly refutes the movant's fact with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant's fact; or (iii) points out that the movant's citation does not support the movant's fact or that the movant's fact is not material or otherwise had failed to comply with the provisions set out in LR 56.1B.(1)"); see also Aning v. Fannie Mae, 633 Fed. App'x. 773, 776 (11th Cir. 2016) (unpublished decision) (finding that the district court did not err by applying LR 56.1 to deem the defendant's statements of material facts as admitted where the plaintiffs failed to follow that rule in responding to defendant'smotion for summary judgment). Nevertheless, the undersigned has reviewed the record to determine whether genuine issues of material fact exist to be tried. Yet the court need not "scour the record" to make that determination. Tomasini v. Mt. Sinai Med. Ctr. Of Fla., 315 F. Supp. 2d. 1252, 1260 n.11 (S.D. Fla. 2004) (internal quotation omitted). In ruling on a summary judgment motion, the facts are construed in the light most favorable to the non-movant. See Frederick v. Sprint/United Mgmt. Co., 26 F.3d 1305, 1309 (11th Cir. 2001).

On or about September 26, 2011, Plaintiff obtained a line of credit loan from Pinnacle, account number xxxxxx0-800 ("the Account"). (Def. SMF ¶ 1; Doc. 38-2, Ex. A ("Padin Aff.") ¶ 3).² Previous monthly statements for the Account indicate that Plaintiff owed a $188.00 payment in December 2011 and a $94.00 payment in February 2012. (Def. SMF ¶ 1; Padin Aff. ¶ 3; Doc. 38-2, Ex. A-1 at 1-2). Plaintiff paid off the Account balance in January 2018, the Account was closed in June 2018, and Plaintiff owed no more money on the Account. (Def. SMF ¶ 1; Padin Aff. ¶ 3). Plaintiff alleges in her Complaint that she obtained a copy of her Equifax credit report on March 20, 2019, which showed her Pinnacle Account tradeline as having a monthly payment amount of $94.00. (Def. SMF ¶ 3; Doc. 1 ¶ 10, 12). Plaintiff alleges that the reported monthly payment was erroneous, because the Account was paid off and closed by that time, meaning the monthly payment amount should havebeen reported as $0.00. (Def. SMF ¶ 3; Doc. 1 ¶¶ 10-12). On or about May 15, 2019, Plaintiff submitted a dispute letter to Equifax disputing Pinnacle's tradeline. (Def. SMF ¶ 5; Doc. 1 ¶ 13). On or about May 23, 2019, Pinnacle received an Automated Credit Dispute Verification ("ACDV") from Equifax regarding Plaintiff's dispute. (Def. SMF ¶ 5; Padin Aff. ¶ 4; Doc. 38-2, Ex. A-2 ("Equifax ACDV") at 1). Pinnacle responded to the Equifax ACDV on May 24, 2019. (Def. SMF ¶ 5; Equifax ACDV at 1). In that response, Pinnacle confirmed that the scheduled monthly payment amount on the Account was $94.00, the last payment was made on the Account on January 1, 2019, the Account was closed on June 1, 2019, and the balance of the Account was $0.00. (Def. SMF ¶ 6; Padin Aff. ¶ 5; see Equifax ACDV). When Plaintiff obtained another copy of her Equifax credit report on July 27, 2019, the Account's tradeline was still showing the monthly payment amount as $94.00. (Doc. 1 ¶ 18). Then, asserting Pinnacle was negligently and/or willfully violating the FCRA by failing to correct the disputed tradeline, Plaintiff brought this action. (Doc. 1 ¶ 19).

Discussion

I. Summary Judgment Standard

Summary judgment is proper "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 party asserting that a fact cannot be or is genuinelydisputed must support that assertion by[] . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1). The moving party has an initial burden of informing the court of the basis for the motion and showing that there is no genuine issue of material fact. Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986); see also Arnold v. Litton Loan Servicing, LP, No. 1:08-cv-2623-WSD, 2009 WL 5200292, at *4 (N.D. Ga. Dec. 23, 2009) ("The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact.") (citing Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999)). If the non-moving party will bear the burden of proving the material issue at trial, then in order to defeat summary judgment, she must respond by going beyond the pleadings, and by her own affidavits, or by the discovery on file, identify facts sufficient to establish the existence of a genuine issue for trial. See Celotex, 477 U.S. at 322, 324. "No genuine issue of material fact exists if a party has failed to 'make a showing sufficient to establish the existence of an element . . . on which that party will bear the burden of proof at trial.' " AFL-CIO v. City of Miami, 637 F.3d 1178, 1186-87 (11th Cir. 2011) (quoting Celotex, 477 U.S. at 322).

Furthermore, "[a] nonmoving party, opposing a motion for summary judgment supported by affidavits[,] cannot meet the burden of coming forth with relevant competent evidence by simply relying on legal conclusions or evidence which would be inadmissible at trial." Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991), cert. denied, 506 U.S. 952 (1992); see also FED. R. CIV. P. 56(c)(1)(B), (c)(4). The evidence "cannot consist of conclusory allegations or legal conclusions." Avirgan, 932 F.2d at 1577. Unsupported self-serving statements by the party opposing summary judgment are insufficient to avoid summary judgment. See Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 714 (11th Cir. 1984).

For a dispute about a material fact to be "genuine," the evidence must be such that "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted). It is not the court's function at the summary judgment stage to determine credibility or decide the truth of the matter. Id. at 249, 255. Rather, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [the nonmovant's] favor." Id. at 255.

II. Analysis

Plaintiff alleges in her Complaint that Pinnacle negligently and/or willfully violated § 1681s-2(b) of the FCRA by failing to conduct a proper investigation ofPlaintiff's dispute, failing to review all relevant information available to it when conducting its investigation, and failing to direct Equifax to report the Account's tradeline with a monthly payment amount of $0.00. (Doc.1 ¶¶ 32-43).

"The FCRA was enacted 'to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit . . . in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information.'" Turner v. Wells Fargo Dealer Servs., No. 1:17-cv-01257-TCB-CMS, 2017 U.S. Dist. LEXIS 219395, at *10-11 (N.D. Ga. Oct. 23, 2017) (quoting 15 U.S.C. § 1681(b)), adopted by 2017 U.S. Dist. LEXIS 219394 (N.D. Ga. Nov. 13, 2017). "To achieve its purpose, the FCRA places distinct obligations on three types of entities: consumer reporting agencies ('CRAs'), users of consumer reports ('users'), and furnishers of information ('furnishers')." Id. at *11 (citing Chipka v. Bank of Am., 355 Fed. App'x. 380, 382 (11th Cir. 2009) (citing 15 U.S.C. §§ 1681b, 1681m, and 1681s-2)).

Plaintiff's claims rest on alleged violations by Pinnacle as a furnisher of information to CRAs. (Doc. 1 ¶ 7). "The FCRA imposes two separate duties on furnishers," i.e., "1681s-2(a) requires furnishers to submit accurate information to CRAs," while "§ 1681s-2(b) requires furnishers to investigate and respond promptly to notices of customer disputes." Id. (citing Green v. RBS Nat'l Bank, 288 Fed.App'x. 641, 642 (11th Cir. 2008)). Section 1681s-2(b), which requires a furnisher to investigate and respond promptly to notices of customer disputes, "does provide consumers with a...