Experian's Arguments re Cons Rpts:Toler v. PHH,etal, WD Ark

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Experian's Arguments re Cons Rpts:Toler v. PHH,etal, WD Ark

Postby Administrator » Fri Nov 21, 2014 3:18 am

Experian's Arguments re Cons Rpts:Toler v. PHH,etal, WD Ark


G. Plaintiffs Failed to Show the Contents of any Consumer Report Published by Experian
To establish a violation of § 1681 e(b) or § 168li, Plaintiffs must present evidence that an
Experian "consumer report" was published with inaccurate information. See Jackson v. Equifax
Information Services, LLC., 167 Fed. Appx. 144, 146 (11th Cir. 2006). The FCRA defines a
"consumer report" as a report sent to potential creditors for personal, family, or household
purposes. See § 1681a(d). Reports sent directly from Experian to Plaintiffs-known as
"consumer disclosures"-are not "consumer reports" and cannot be the basis for liability under
the FCRA. As the Southern District of Alabama explained:
[A] "consumer report" or "consumer credit report" is different from a credit file, credit report, or credit disclosure. A "consumer report" is a report generated by a credit reporting agency and delivered to a third party such as an employer, insurer, or lender, for use in deciding whether the consumer is eligible for credit or other purposes. 15 U.S.c. § 1681a(d). A credit report, file or disclosure is the credit reporting agency's file which it provides to the consumer, not third parties, and contains "information solely as to transactions or experiences between the consumer and the person making the report ..." 15 U.S.c. § 1681a(d); § 1681g; see also 15 U.S.C. § 1681 a(d)(2)(A)(i) ("report containing information solely as to transactions or experiences between the consumer and the person making the report").
Pettway v. Equifax Info. Servs., LLC, No. 08-0618-KD-M, 2010 U.S. Dist. LEXIS 13800, at *21­
22 (S.D. Ala. Feb. 12, 2010). At trial, Plaintiffs' failed to show evidence regarding the specific
content of any consumer report published by Experian, instead attempting to rely on Experian's
consumer disclosures sent to the Tolers directly. Like the court explained in Pettway, this
showing does not meet Plaintiffs' burden under the FCRA as a matter of law:
As explained, reports prepared only for Pettway, such as those prepared by Experian or Equifax in response to her credit disputes, are not "consumer reports" under the FCRA. Pettway did not provide the Court with a copy of a consumer report provided by Experian or Equifax from which the trier of fact could find or infer that inaccurate information was published therein or that the consumer report was a causal factor in
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Case 6:12-cv-06032-RTD Document 262 Filed 11/20/14 Page 13 of 17 PageID #: 7176
the denial of credit in September 2008.... Therefore, the Court is without any evidence that a consumer report prepared by Experian or Equifax was a causal factor in the denial of credit in September 2008 as plead in the amended complaint.
Id. at 23-24. Moreover, Plaintiffs' evidence and testimony regarding "denial letters" from
alleged potential creditors does not satisfY their required showing regarding the specific contents
of the underlying consumer report necessary to satisfY the elements of inaccuracy and causation.
The Eleventh Circuit, in Ray v. Equifax Info. Servs., LLC, explained:
Ray produced a letter from Citibank as evidence that an inaccurate credit report caused him injury, but the Citibank letter itself stated that Ray had been denied an account because a "credit obligation related to a bankruptcy ... was recorded on [his] credit bureau report." Ray argues that the letter from Citibank was referring to the missing positive entries and MBNA's failure to report his accounts as "discharged in bankruptcy." However, because Ray failed to produce the credit report from 2004 which Citibank would have relied on, he cannot show that it was inaccurate, or even that the issues he complained of were not rectified.
Ray never produced any other evidence suggesting that Citibank or any other creditor denied him credit because of inaccuracies in the credit report produced by Equifax. Because Ray failed to produce the 2004 credit report, he did not create a genuine issue of material fact that inaccurate information was reported by Equifax or that it caused him harm, and he therefore failed to establish a prima facie case of a violation of § 1681e(b).
327 Fed. Appx. 819, 827 (11th Cir. 2009) (emphasis added). Because Plaintiffs failed to show
the contents of any Experian "consumer report" within the meaning of the FCRA, Experian is
entitled to judgment as a matter of law on Plaintiffs' claims for this independent reason.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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