No Pain & Suffering Damages Unless Third Party Saw Repor

David A. Szwak

No Pain & Suffering Damages Unless Third Party Saw Repor

Postby David A. Szwak » Mon Jan 16, 2006 5:50 pm

Spector v. Trans Union LLC First USA Bank, N.A.
301 F.Supp.2d 231
Jan 28, 2004

The Court agrees with Judge Janet Bond Arterton that "Casella stands for the proposition that recovery under FCRA for pain and suffering is precluded where the plaintiff cannot show that a creditor was aware of the inaccurate information, because mere knowledge by a plaintiff of potentially damaging credit information is insufficient FCRA damages." McMillan, 170 F.Supp.2d at 286, n. 10. The parties do not seriously dispute this legal proposition, but instead present differing views on whether the underlying evidence satisfies that standard. It appears from the evidence submitted that some creditors (in particular MCI Worldcom Wireless and Fleet Bank) may well have become aware of the allegedly inaccurate information regarding Ms. Spector's account. [FN4] See Attachment to Pl.'s Opp'n Mot. for Sum. J. At a minimum, the evidence is currently equivocal on that point. Drawing all inferences in favor of plaintiff, as the Court must, the Court concludes that Trans Union has not demonstrated that it is entitled to judgment as a matter of law on the issue of causation.

FN4. In Casella, the Second Circuit stated that Casella had presented no evidence that Trans Union "provided appellant's credit report to any third party." 56 F.3d at 475. That is not necessarily the case here since Trans Union's counsel acknowledged at argument that even though MCI Worldcom Wireless and Fleet Bank did not receive Ms. Spector's actual credit report, they received "scoring" that would have reflected the disputed "Chapter 7 Bankruptcy." At trial, the parties may well elaborate on this issue and by their proof, demonstrate that different inferences are appropriate.

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