Rambarran v. Bank of America, N.A.

609 F.Supp.2d 1253

Parasram RAMBARRAN, Plaintiff, v. BANK OF AMERICA, N.A., Defendant.

Case No. 07-21798-CIV.

United States District Court, S.D. Florida.

March 13, 2009.

Parasram Rambarran, Miami, FL, pro se.

Christopher Michael Stephan Drury, Liebler Gonzalez & Portuondo PA, Miami, FL, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ANDREA M. SIMONTON, United States Magistrate Judge.

Presently pending before the Court is Defendant's Motion for Summary Judgment, Motion to Strike Plaintiff's Damages Claim, Motion to Preclude Plaintiffs Presentation of Trial Witnesses, and Motion to Strike Plaintiffs Demand for Trial by Jury (DE # 33). The motion for summary judgment is fully briefed (DE ## 48, 57, 86, 87)¹ and this case is referred to the undersigned Magistrate Judge based upon the consent of the parties (DE # 20). Based upon a thorough review of the record as a whole, and for the reasons stated herein, Defendant's Motion for Summary Judgment is GRANTED. All remaining requests for relief are DENIED AS MOOT.

I. BACKGROUND

Under the Fair Credit Reporting Act ("FCRA"), Bank of America is a "furnisher of credit information" that is obligated to conduct an investigation into the accuracy and completeness of the credit information it has provided to consumer reporting agencies ("CRAs") upon receiving proper notice from a CRA that a consumer has challenged an item in his credit report that was provided by the Bank. 15 U.S.C. § 1681s-2(b). In the context of this case, Plaintiff alleges that he notified three CRAs—Experian, Trans Union and Equifax—that his credit report included a harmful "charged off" account that was incorrectly reported by Bank of America even though Plaintiff had settled that account years earlier; and, that after one or more of the CRAs notified Bank of America of Plaintiffs credit dispute, Bank of America was then obligated to conduct an investigation within 30 days to determine whether it was accurately reporting the charged off account. Plaintiff contends that the Bank failed to do this; that the incorrect information remained in his record for approximately three months until Bank of America finally corrected it; and that he is therefore entitled to actual or statutory damages, in addition to punitive damages and pre-judgment and post-judgment interest (DE # 1). Bank of America denies any wrongdoing and filed the instant motion for summary judgment, asserting that, after adequate time for discovery, Plaintiff has failed to produce a scintilla of evidence to support the elements of his claim that he will bear the burden of proving at trial (DE # 33).

Plaintiff filed his four-count pro se complaint on July 12, 2007, which Bank of America immediately moved to dismiss (DE # 5). The District Judge assigned to this case entered an Order in which he noted that "Plaintiff invokes the FCRA . . . but does not specify which portion of that Act" is applicable to his claims (DE # 14 at 5). Thus, the District Judge dismissed Counts I-III because they appeared to state a cause of action under 15 U.S.C. § 1681s-2(a), which does not provide for enforcement by individual consumers, like Plaintiff (DE # 14 at 5-6).

In contrast, the District Judge denied Bank of America's motion to dismiss Count IV, based on the fact that the FCRA provides a private right of action for violations of 15 U.S.C. § 1681s-2(b), which encompasses Plaintiffs allegation that the Bank failed to promptly investigate the information it furnished to the CRAs regarding Plaintiffs credit after receiving notice from the CRAs that Plaintiff disputed the accuracy of that information (DE # 14 at 6).

In his Order on Defendant's motion to dismiss, the District Judge noted two salient facts: First, Bank of America's duty to conduct an investigation pursuant to the FCRA is only triggered upon being notified of a dispute by a CRA directly; a complaint lodged by the consumer to the Bank will not suffice to trigger a duty to investigate under the statute (DE # 14 at 8 n. 5). Second, upon receiving such notice directly from a CRA, Bank of America "had thirty days to begin its investigation before being in breach" of the FCRA (DE # 14 at 8); 15 U.S.C. § 1681s-2(b)(2). Thus, construing the allegations in the light most favorable to Plaintiff, the District Judge concluded that Bank of America cannot be liable for any damages for any act or omission committed prior to March 9, 2006, because Plaintiff first notified the CRAs that he disputed the charged off account on February 7, 2006, and, therefore, the earliest deadline for Bank of America to conduct an investigation expired 30 days later, on March 9, 2006 (DE # 14 at 8, 10-11).

Thereafter, pursuant to 28 U.S.C. § 636(c), this case was referred to the undersigned Magistrate Judge based upon the consent of the parties. Bank of America subsequently filed the presently pending motion for summary judgment. First, Bank of America contends that there is no evidence to support Plaintiff's assertion that it received notice directly from a CRA that Plaintiff disputed its reporting of his charged off account (DE # 33 at 9). Second, Bank of America contends that the earliest it could have possibly received notice directly from a CRA was February 7, 2006; and that there is no evidence that it breached any statutory duties within the time provided under the FCRA (DE # 33 at 8-9). Third, Bank of America contends that there is no evidence that Plaintiff incurred any losses after March 9, 2006, the day that the Bank's 30-day deadline to conduct an investigation expired; and, therefore, there is no evidence to support the imposition of actual damages (DE # 33 at 8-10). Finally, Bank of America contends that there is no evidence to support the imposition of statutory or punitive damages based on the Bank's willful noncompliance with the FCRA (DE # 33 at 10).²

II. LEGAL STANDARDS

A. Summary Judgment

Under the familiar standard of Federal Rule of Civil Procedure 56(c), summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." The movant has satisfied its burden of proof if, "after adequate time for discovery," the non-movant has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the motion is filed by a defendant and addresses the adequacy of plaintiff's causes of action, the defendant's "burden is not to produce evidence negating the existence of material facts; rather, the burden is to `point out the absence of evidence supporting the nonmoving party's case.'" Compania de Elaborados de Cafe v. Cardinal Capital Mgmt., Inc., 401 F. Supp.2d 1270, 1274 (S.D.Fla.2003) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992)); see also Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004).

Assuming the moving defendant has met its initial burden, the non-moving plaintiff "may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There must be a genuine factual dispute sufficient to permit a reasonable jury to return a verdict for the non-movant; and, "[f]or factual issues to be considered genuine, they must have a real basis in the record." Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996) (quoting Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir. 1993)). "For instance, mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005). While the Court must view all of the evidence and any inferences arising therefrom in light most favorable to the non-movant, it is nevertheless insufficient for the non-movant "to state what the evidence at trial will demonstrate" without producing actual "evidence to refute the factual claims contained in the motion for summary judgment." Schvaneveldt v. MasTec N. Am., Inc., 306 F.Supp.2d 1177, 1181 (S.D.Fla. 2004) (citing Hairston, 9 F.3d at 918). Nor is the Court "required to `scour the record to determine whether there exists a genuine issue of material fact to preclude summary judgment.'" Cardinal Capital, 401 F.Supp.2d at 1282 n. 5.

B. The Fair Credit Reporting Act

As it relates to this case, the Fair Credit Reporting Act imposes certain duties upon Bank of America in its capacity as a furnisher of credit information. First, in order to trigger a duty to act, Bank of America must "receive notice pursuant to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information" it provided to "a consumer reporting agency [ (`CRA') ]" 15 U.S.C. § 1681s-2(b)(1). Notice to a furnisher of credit information, such as Bank of America, is provided pursuant to section 1681i(a)(2) when a CRA, such as Experian, Trans Union or Equifax, reports that a customer, such as Plaintiff, has disputed an item of credit that the Bank provided to the CRA. 15 U.S.C. § 1681i(a)(2).

After receiving such notice, the Bank is required to "conduct an investigation with respect to the disputed information;" and "review all relevant information provided" to it by the CRA. 15 U.S.C. § 1681s-2(b)(1). Regardless of the results of its investigation, the Bank must report back to any CRA that notified it of the...