Bankruptcy: Napier v. TRW

Information that should and should not be reported where there is a bankruptcy.
David A. Szwak

Bankruptcy: Napier v. TRW

Postby David A. Szwak » Mon Oct 24, 2005 7:06 pm

Napier v. TRW/Credit Bureau Associates, Inc.,
Not Reported in A.2d, 1997 WL 819136, Del.Super., Oct 29, 1997

This 29th day of October, 1997, upon consideration of the papers filed by the parties and the record in this case, it appears to the Court that:
(1) Plaintiff Below-Appellant James D. Napier (Napier) appeals pro se [FN1] from a judgment of the Court of Common Pleas granting a directed verdict to Defendant Below-Appellee TRW/Credit Bureau Associates, Inc. (CBA). For the reasons which follow, the judgment of the Court of Common Pleas is AFFIRMED.

FN1. The Court has attempted to characterize Napier's assertions as recognizable legal arguments. See Jackson v. Unemployment Ins. Appeal Bd., Del.Super., C.A. No. 85A-No-9, Bifferato, J. (Sept. 24, 1986), Letter Op. at 3 (holding that the Superior Court may exhibit some degree of leniency toward a pro se litigant to ensure that his or her case is fully and fairly heard).

(2) CBA, a credit reporting agency, maintained a credit report on Napier. Napier originally filed suit in the Justice of the Peace Court. [FN2] That case was dismissed in that court for lack of jurisdiction. Napier then filed suit in the Court of Common Pleas alleging that CBA had violated the Fair Credit Reporting Act (FCRA). [FN3] Specifically, Napier alleged that CBA's failure to report that he had filed for bankruptcy and that the bankruptcy was later dismissed violated the FCRA. [FN4] He also alleged that CBA was required to place a one hundred word statement prepared by Napier in his credit report explaining any disputes pertaining the credit report. [FN5] CBA's failure to include such a statement, Napier contended, also violated the FCRA. Finally, Napier claimed that CBA was required to remove reference to a tax lien from his credit report. [FN6] He sought $15,000 in punitive damages.

FN2. It is not clear from the record what remedies Napier was seeking in the Justice of the Peace Court.

FN3. 15 U.S.C. § 1681.

FN4. Ct. Comm. Pleas Compl. ¶ 3a.

FN5. Id. ¶ 3c.

FN6. Id. ¶ 3d.

(3) A non-jury trial was held in the Court of Common Pleas on April 9, 1997. At the close of Napier's case, CBA moved for directed verdict pursuant to Court of Common Pleas Rule 50(a). [FN7] CBA then argued that: (1) it was not required to have reported the bankruptcy and therefore, it had no obligation to report that Napier's bankruptcy had been dismissed; (2) because Napier had not submitted a one hundred word statement disputing the tax lien but rather a one hundred word statement concerning CBA's failure to note Napier's bankruptcy and its later dismissal, CBA did not violate the FCRA; and (3) since Napier did not dispute that the tax lien was a matter of public record, the credit report was therefore accurate. [FN8] The Court of Common Pleas granted that motion and entered a judgment in favor of CBA, from which decision Napier appeals. [FN9]

FN7. Tr. at 22.

FN8. Id. at 18-20.

FN9. Id; 10 Del. C. § 1318; Super. Ct. Civ. R. 72(a).

(4) In this appeal, Napier contends that: (1) the FCRA requires CBA to report the dismissal of his bankruptcy; (2) CBA is required to remove reference to the IRS tax lien from his credit report; and (3) CBA unlawfully allowed certain credit companies to "solicit" his records in violation of the FCRA. This latter issue was not presented to the trial court.

(5) When sitting as an intermediate court of appeals, the Superior Court functions the same as the Supreme Court. [FN10] The standard of review in an appeal from a trial court's ruling upon a motion for directed verdict is whether the evidence and all reasonable inferences that can be drawn therefrom, taken in a light most favorable to the non-moving party, raise an issue of material fact for consideration by the trier of fact. [FN11] It is the plaintiff's burden, however, to establish a prima facie basis for recovery as to all elements of his claim. [FN12] That burden requires a significant evidentiary showing. [FN13] The existence of a mere scintilla of evidence in favor of the non-moving party is insufficient to support the verdict; the question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the trier of fact could properly find a verdict for that party. [FN14] In addition, issues not raised in the trial court shall not be heard on appeal. [FN15]

FN10. Baker v. Connell, Del.Supr., 488 A.2d 1303, 1309 (1985); State v. Beles, Del.Super., Cr.A. No. 96-06-0468, Graves, J. (March 13, 1997) (Mem.Op.) (holding that the Superior Court when sitting as a court of appeal functions the same as the Supreme Court); State v. Arterbridge, Del.Super., Cr.A. No. 94-08-0845, Barron, J. (December 7, 1995) (Mem.Op.) (same).

FN11. Russell v. Kanaga, Del.Supr., 571 A.2d 724, 731 (1990).

FN12. Freedman v. Chrysler Corp., Del.Supr., 564 A.2d 691, 695 (1989).

FN13. Id.

FN14. Id.

FN15. Wilmington Trust Co. v. Conner, Del.Supr., 415 A.2d 773, 781 (1980); Wilmington Mem. Co. v. Silverbrook Cemetery Co., Del.Supr., 297 A.2d 378, 380 (1972).

(6) Pursuant to the Federal Trade Commission's commentary on the FCRA, "[c]onsumer reporting agencies are not required to include all existing derogatory or favorable information about a consumer in their reports." [FN16] Furthermore, if a reported bankruptcy has been dismissed, that fact should be reported." [FN17] At no time did CBA report that Napier filed for bankruptcy. Therefore, under the FCRA, CBA was not required to report that the bankruptcy had been dismissed. Such was the correct finding of the trial court. [FN18]

FN16. FTC Fair Credit Reporting Act, 16 C.F.R. § 600 (1990).

FN17. Id.

FN18. Tr. at 29.

(7) CBA was not required to remove the IRS tax lien from Napier's credit report. Napier does not dispute that a federal tax lien is on public record against him in Chester County, Pennsylvania. [FN19] Napier does, however, dispute the validity of the tax lien. [FN20] Where a consumer disputes a particular credit item appearing on his report, the consumer may submit a statement setting forth his version of the dispute to be enclosed in the credit report. [FN21] Thus CBA was not required to remove the tax lien from Napier's credit report. [FN22] Rather, CBA was obligated to allow Napier to place a statement on the report noting the dispute, and did so. [FN23]
FN19. Stipulation of Facts ¶ 4.

FN20. Id. at 9.

FN21. Williams v. Colonial Bank, M.D. Ala., 826 F.Supp. 415, 418 (1993), aff'd, 11th Cir., 29 F.3d 641 (1994).

FN22. Id.

FN23. Id.

(8) Napier also raises a new issue in this appeal. He claims that CBA unlawfully allowed certain credit companies to solicit information from them about his credit report. As these issues were not raised in the trial court, they may not now considered on appeal . [FN24]

FN24. Wilmington Trust Co. v. Conner, Del.Supr., 415 A.2d 773, 781 (1980); Wilmington Mem. Co. v. Silverbrook Cemetery Co., Del.Supr., 297 A.2d 378, 380 (1972).

(9) The Court finds that the evidence and all reasonable inferences that can be drawn therefrom, taken in a light most favorable to the non-moving party, did not raise an issue of material fact before the trial court, and that the trial court correctly granted a directed verdict in CBA's favor. Thus the judgment of the Court of Common Pleas is AFFIRMED.
IT IS SO ORDERED.

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