Lack of Willfulness:Spector

David A. Szwak

Lack of Willfulness:Spector

Postby David A. Szwak » Sun Nov 06, 2005 2:09 pm

Spector v. Experian Information Services Inc.
321 F.Supp.2d 348

Plaintiff has also failed to present any evidence of willful noncompliance with any provision of the FCRA. See 15 U.S.C. § 1681n. Under the FCRA, "any person who willfully fails to comply with any requirement imposed under [the FCRA] with respect to any consumer is liable to that consumer in an amount equal to the sum of ... such amount of punitive damages as the court may allow." 15 U.S.C. § 1681n. Plaintiff is correct that punitive damages may be available even where a plaintiff has sustained no actual damages. See 15 U.S.C. § 1681n(2); Casella, 56 F.3d at 476; Boothe v. TRW Credit Data, 557 F.Supp. 66, 71-72 (S.D.N.Y.1982). However, to survive summary judgment on a willful non-compliance claim, a plaintiff must set forth affirmative evidence demonstrating "conscious disregard" or "deliberate and purposeful" actions necessary to make out a claim for willful noncompliance under the FCRA. 56 F.3d at 476 (quoting Pinner v. Schmidt, 805 F.2d 1258, 1263 (5th Cir.1986))("[i]n each case where punitive damages have been allowed the defendant's conduct involved willful misrepresentations or concealments.") Based on the record before this court, there is no evidence that Wachovia engaged in deliberate or reckless conduct that would warrant punitive damages. In fact, plaintiff admits that "Wachovia followed its normal procedure in responding to plaintiff's dispute and has no information indicative of any departure from normal procedures." (Pl.'s Rule 56(a)(1) Statement). Accordingly, summary judgment is also granted in favor of defendants on plaintiff's claim of willful non-compliance.

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