Cannot Use Liar, Liar Pants on Fire; File Evidence!

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Cannot Use Liar, Liar Pants on Fire; File Evidence!

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Cook v. Equifax Credit Information Services, Inc.
Not Reported in F.Supp.2d, 1998 WL 883323
E.D.La.,1998.
December 15, 1998

SCHWARTZ, District J.

*1 Defendant Equifax Credit Information Services, Inc. [“Equifax”] moves for summary judgment in this fair credit reporting action. Plaintiff Cook opposes the motion.FN1


FN1. Two other defendants, Esperian Information Solutions, Inc. and Transunion Credit Division were voluntarily dismissed from the action by plaintiff. Only Equifax and facts related to it will be discussed.

The action involves an error made by Hibernia National Bank [“Hibernia”] in reporting credit information to defendant Equifax, a consumer credit reporting agency; and whether Equifax timely corrected its records after Hibernia directed it to do so. The sole issue placed in dispute by plaintiff on this motion is whether Equifax made the correction in February, 1996, as Equifax contends, or in September, 1996, as plaintiff contends. The following undisputed facts are taken from the submissions of the parties and are presented in the light most favorable to plaintiff.



FACTS


Hibernia financed plaintiff's automobile purchase and charged her for automobile insurance for the full term of the loan, though plaintiff had her own insurance. When plaintiff paid off the loan in 1992 and learned of that error, she disputed the matter with Hibernia and thought it was resolved. But, Hibernia reported to Equifax that the amount of the insurance premiums was past due. Equifax included that information in plaintiff's credit reports.


In 1995, a store denied plaintiff credit. She then obtained a copy of her Equifax report, which showed more than $3,000 past due to Hibernia and rated the account “9” (“Charged off to bad debt”). Plaintiff disputed this to Equifax, which contacted Hibernia, which confirmed the bad debt information. In December, 1995, Equifax reported this to plaintiff with a copy of her report, still showing the past due Hibernia account. Plaintiff's counsel wrote Hibernia on February 8, 1996. Hibernia wrote Equifax on February 13, 1996, directing a change in the report regarding the Hibernia information.


In August, 1996, plaintiff was denied a credit card by GE Capital Consumer Card Co. [“GE”] (but was approved for a Sears account). GE had purchased plaintiff's account with Petrie Retail, Inc. [“Petrie”], and wrote plaintiff stating that the Petrie account would be closed and the Petrie card should be destroyed; but she would not be issued a GE card. The reasons given were:


Relationship Of Balance To High Credit On Bank/National Or Other Revolving/Open Accounts


Not All Accounts Paid As Agreed


Number Of Inquiries Within The Last Twelve Months


Current Outstanding Balances on Accounts


The letter stated that information in a credit report “was relied on in whole or in part in reaching the decision” and provided the address of Equifax. Plaintiff was also advised that her outstanding Petrie balance would be transferred to a GE MasterCard account for billing purposes.


Plaintiff's attorney wrote Equifax on September 12, 1996, with a release from plaintiff, requesting a copy of her report. On September 19, 1996, Equifax sent a copy of the report to plaintiff, not her attorney. The report contained no mention of the Hibernia account, and showed all of plaintiff's other accounts with a status of “1” (“Paid as agreed”) (but showed that plaintiff had been late with payments on a store account in 1992). Plaintiff found no error in the report, but did not advise her counsel of receiving it and gave it to him only days before her deposition in November, 1998.


*2 Plaintiff's complaint, filed in September, 1997, alleges that Equifax “failed within a reasonable time to delete all inaccurate information” in her report despite Hibernia's instructions to do so .FN2 Plaintiff alleges violations of the Fair Credit Reporting Act [“FCRA”], 15 U.S.C. § 1681, et seq., the similar state law regarding credit reporting, LSA-R.S.9:3571.1, and state tort law.


FN2. Plaintiff also alleged not receiving a requested copy of her report, but now agrees that she received it.



LAW


On a motion for summary judgment, the inquiry performed by the Court is the threshold inquiry of whether there is the need for a trial, i.e., whether that are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Equifax bears the initial burden of pointing out the portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If Equifax presents a properly-supported motion, plaintiff has the burden to show with “significant probative” evidence that there exists a triable issue of fact. Kansa Reinsurance Company, Ltd. v. Congressional Mortgage Corporation of Texas, 20 F.3d 1362, 1371 (5th Cir.1994), and cases cited. While plaintiff may use proof filed by Equifax to satisfy her burden, only evidence-not argument, not facts in the complaint-will satisfy the burden. Johnston v. City of Houston, 14 F.3d 1056, 1060 (5th Cir.1994). Plaintiff must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).


The FCRA requires a credit reporting agency to “follow reasonable procedures to assure maximum possible accuracy of the information” in a credit report. 15 U.S.C. 1681e(b). The state law requires the same, referring to the FCRA standard. LSA-R.S. 9:3571.1B, G(3). That standard does not impose strict liability on an agency, but only a duty of reasonable care in its report preparation and updating procedures. Thompson v. San Antonio Retail Merchants Association, 682 F.2d 509, 513 (5th Cir.1982).



DISCUSSION


The erroneous Hibernia information was deleted sometime between December, 1995, when the credit report FN3 showed the information and September, 1996, when the report FN4 did not.


FN3. D.Ex.C; P.Ex.2, p. 1.

FN4. D.Ex.E; P.Ex.3.

Equifax has submitted the affidavit of its Manager of the Office of Consumer Affairs FN5 and a printed computer “dump” showing historical information about plaintiff's record.FN6 Supported by the computer record, the Manager avers under oath that the Hibernia information was deleted from its records in February, 1996, shortly after Hibernia in its February 13 letter directed Equifax to do so. Equifax has presented a properly-supported motion for summary judgment.FN7


FN5. D.Ex.1.

FN6. D.Ex.D; P.Ex.4.

FN7. Equifax has also submitted a copy of a 164 page manual guiding its employees in the method of investigating consumer complaints of inaccuracies (Ex.A). The Court need not examine the procedures themselves, because plaintiff does not contend that the procedures are not reasonable. Equifax also submitted copies of plaintiff's November, 1995 report (Ex.B) and portions of plaintiff's deposition (Ex.2).

*3 In opposition to the motion, plaintiff asserts that Equifax corrected her record only in September, 1996, after her attorney requested a copy by letter FN8 with plaintiff's authorization.FN9 This is a suggestion that the Equifax Manager lied in her affidavit. Plaintiff has also submitted copies of the GE letter denying her a credit card FN10 and an Equifax instruction sheet on how to read a credit report.FN11


FN8. P.Ex.1, p. 1.

FN9. P.Ex.1, p. 2.

FN10. P.Ex.1, p. 3.

FN11. P.Ex.2, p. 2.

In Price v. Rochford, 947 F.2d 829 (7th Cir.1991), a plaintiff opposed a properly-supported summary judgment motion by reasserting the allegations of his complaint and averring by affidavit that the defendants had lied in their affidavits. The Court of Appeals held that that would not defeat summary judgment. Though the plaintiff thought the defendants were lying, he had to “do more than show that there is some metaphysical doubt as to the material facts.” Price, 947 F.2d at 833, quoting Matsushita, supra. That is the situation herein.


Plaintiff argues that the Hibernia information must have been in the Equifax report to be relied on by GE in August, 1996, because: on the December, 1995, report only the Hibernia account is shown with less than a “Paid as agreed” rating; and one of the four reasons given by GE for denying her a card was, “Not All Accounts Paid As Agreed.”


To support her assertion of Equifax' prevarication, plaintiff points out that the computer dump showing that the deletion was made in February was prepared after this lawsuit was filed; and that some characters in the first line of the dump are blacked out. The date of the dump is immaterial to its accuracy. There is no showing that the few obscured characters, apparently in a line of computer instructions, are relevant to when the Hibernia information was deleted.


Plaintiff posits that the September, 1996 report is incorrect in some details unrelated to the Hibernia account. This is asserted apparently to suggest that Equifax was generally negligent in its recording of information. The suggestions of error in the report are based on misrepresentation or mis-reading of documents or on unsupported assumptions. None of the matters referred to is relevant to the issue of timeliness.FN12


FN12. Plaintiff points out GE advised that her Petrie account was closed; but the later report shows the account open. The report does not show the account closed, but correctly shows the last activity was in June, 1996, and there is no evidence that GE advised Equifax that the account was closed. Plaintiff claims that GE advised it would not open an account for her, but the report shows a GE account opened in July and closed in September. The GE letter stated that GE would not issue plaintiff a card, but would transfer any outstanding Petrie balance to a GE MasterCard account for billing purposes. Further, the report does not show a GE account closed in September, it shows a closed account with an outstanding balance, with the most recent activity in September. Plaintiff complains that Equifax deleted any reference to the Hibernia account, rather than indicating it was paid as agreed. There is no showing that this treatment of the Hibernia information is contrary to Hibernia's instructions to Equifax.

As an error in the report, plaintiff points out that the GE letter denying her a card and mentioning Equifax was dated August 14, 1996; but the credit report shows that GE inquired of Equifax regarding her credit only later, on August 22. The exact August date when GE received information from Equifax is irrelevant to whether Equifax deleted the Hibernia information in February or September. (The date of GE's inquiry shown in the report, which report is apparently correct in all other particulars, could suggest that GE did not depend on an Equifax report in denying plaintiff a card.)



CONCLUSION


Equifax' computer record and sworn affidavit show that the negative and erroneous Hibernia information was deleted from the Equifax records timely, in February, 1996. Plaintiff has presented no probative evidence to show that there is a genuine issue of material fact on this matter. She merely argues her subjective belief that Equifax negligently failed to correct her report until September, 1996, after it could have had a negative effect on GE's decision regarding her credit. That will not defeat Equifax' properly-supported motion for summary judgment.


*4 Plaintiff has not shown that there is a genuine issue of material fact requiring trial as to whether Equifax breached its duty of reasonable care in preparing and updating her record. Equifax is entitled to a judgment as a matter of law; and, accordingly,


IT IS ORDERED that the motion of defendant for summary judgment is GRANTED.


The Clerk of Court is directed to enter judgment herein in favor of defendant, Equifax Credit Information Services, Inc., and against plaintiff, Narzellar B. Cook, with plaintiff to bear all costs.

E.D.La.,1998.
Cook v. Equifax Credit Information Services, Inc.
Not Reported in F.Supp.2d, 1998 WL 883323 (E.D.La.)
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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