Being Upset Alone is Not Enough Proof: Thomas

David A. Szwak

Being Upset Alone is Not Enough Proof: Thomas

Postby David A. Szwak » Fri Dec 02, 2005 5:00 am

Thomas v. Gulf Coast Credit Services, Inc.
214 F.Supp.2d 1228

While such a conclusory affidavit might save a defendant who is not on notice of potential inaccuracies, some additional showing of reasonableness is required when the uncontroverted evidence shows that Plaintiff questioned the reliability if Defendants' information sources. See Philbin v. Trans Union Corp., 101 F.3d 957, 965-66 (3rd Cir.1996); see also Bryant v. TRW, Inc., 689 F.2d 72, 77-78 (6th Cir.1982). Equifax (and Trans Union through the purchase of Gulf Coast) was on notice of disputed information in Plaintiff's file long before submitting a credit report to Regions Bank, yet inaccurate information still was conveyed. It is not entirely clear to the court what either Defendant could have done to eradicate the faulty information in Plaintiff's files after it was notified. It may well be that consumer reporting agencies are not in a proper position to adequately determine the reliability of secondary sources, particularly when each such source offers the same information about a victim of identity theft. On the other hand, blind reliance upon *1235 such sources in the face of repeated consumer disputes is not reasonable. The proper test in this regard weighs "the potential harm of inaccuracy against the burden of safeguarding against such inaccuracy." Parker, 124 F.Supp.2d at 1225. Absent sufficient evidence with which to engage in such an analysis, the court cannot conclude as a matter of law that Equifax or Trans Union acted reasonably after Plaintiff disputed the inaccurate information.
Of course, the FCRA's enforcement mechanisms permit relief only upon a showing that Plaintiff suffered damages as a result of Defendants' actions. See Cousin v. Trans Union Corp., 246 F.3d 359, 369 (5th Cir.2001). Plaintiff does not dispute that Regions Bank would have approved her credit application had it relied only upon Trans Union's report. As such, Plaintiff cannot prove she suffered any pecuniary damages stemming from Trans Union's conduct. See Cahlin, 936 F.2d at 1160-61 (holding that a plaintiff's damages claim fails when he or she cannot prove that credit denial was caused by a defendant).
[4] [5] Granted, the denial of a credit opportunity is not a prerequisite to a damages claim under the FCRA; Plaintiff may proceed upon showing that Trans Union caused her to suffer emotional damages. See, e.g., Stevenson v. TRW, Inc., 987 F.2d 288, 296 (5th Cir.1993). Indeed, Plaintiff claims that she felt emotional distress arising from her worry that bad credit reports would affect future credit approvals. (Thomas Dep. at 69-70.) However, at the time Plaintiff felt this distress, she did not know whether Trans Union had supplied erroneous information to any potential lender. Because that information would not have prevented her from credit approval, it would be incongruous to attribute the distress to Trans Union. See Cousin, 246 F.3d at 370. Accordingly, summary judgment is due to be granted as to Plaintiff's § 1681e(b) claim against Trans Union. [FN8]

FN8. The fact that Plaintiff felt upset about a telephone call she received from the same collection agency that received a credit report from Trans Union does not raise a jury issue in this regard. First of all, there is nothing in the record indicating the accuracy of the information relayed to Sagres. Second, only speculation can link the report to the telephone call, there being no evidence as to the time frame of the call. Finally, the court does not believe the frustration experienced by an unsolicited telephone call is the type of emotional distress envisioned by the FCRA's definition of actual damages. See, e.g., Cousin, 246 F.3d at 370-71.

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