Lancaster v. Trans Union, LLC, ND Ill. 2011

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Lancaster v. Trans Union, LLC, ND Ill. 2011

Postby Administrator » Mon Nov 10, 2014 8:46 pm

Lancaster v. Trans Union, LLC
Not Reported in F.Supp.2d, 2011 WL 3610051
N.D.Ill.,2011.
August 16, 2011


MEMORANDUM OPINION

JOHN F. GRADY, District Judge.

*1 Defendant has filed three motions for sanctions. For the reasons explained below, defendant's motion for attorneys' fees and costs pursuant to 28 U.S.C. § 1927 and 15 U.S.C. §§ 1681n and 1681o is granted in part and denied in part, and defendants' remaining motions are denied as moot.



BACKGROUND

Heather Lancaster brought this action against Trans Union, LLC (“Trans Union”), alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. Plaintiff alleged that Trans Union reported inaccurate information on her credit report regarding her boyfriend's credit card account with Discover Financial Services (“Discover”). Early in the pendency of this case, Trans Union took the position that plaintiff's claims were frivolous and sought sanctions on the basis that plaintiff was supporting her claims with fraudulently-altered documents. We denied the sanctions motion as premature. Trans Union also had difficulty obtaining plaintiff's full compliance with her discovery obligations; in March 2010, we granted a motion to compel full document production. Trans Union then filed a motion for summary judgment, which we granted. We assumed, without deciding, that Trans Union had reported inaccurate information and found that plaintiff had failed to come forward with evidence that the appearance of the Discover account on her credit report caused her any damage. We found it unnecessary to reach Trans Union's other arguments for the entry of summary judgment (among which was its argument that plaintiff fraudulently created and produced the documents that allegedly demonstrated her correspondence with Trans Union).


Trans Union has now brought three motions for sanctions, two of which are renewed motions for sanctions under Rule 37 and Rule 11. The third motion, which we will discuss, is for attorneys' fees and costs under 28 U.S.C. § 1927 and 15 U.S.C. §§ 1681n and 1681o.



DISCUSSION

A. 28 U.S.C. § 1927

28 U.S.C. § 1927 provides that “[a]ny attorney ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.” “If a lawyer pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound, the conduct is objectively unreasonable and vexatious.” In re TCI Ltd., 769 F.2d 441, 445 (7th Cir.1985). In the Seventh Circuit, the moving party must show subjective bad faith “only if the conduct under consideration had an objectively colorable basis.” Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 614 (7th Cir.2006). Otherwise, objective bad faith is the standard, and it does not require a finding of malice or ill will; reckless indifference to the law is sufficient. Id.


Trans Union argues that the filing of this suit was frivolous because it should have been clear to plaintiff's counsel from the outset that the case was frivolous in that there was no evidence of causation or damages. Trans Union also contends that plaintiff's counsel wrongfully continued to pursue the case up through summary judgment and failed to dismiss the frivolous claims even after plaintiff made several fatal admissions at her deposition sessions.


*2 Were plaintiff's claims objectively colorable? We think not. First, let us review the complaint. It contains one count for violations of § 1681e(b), § 1681i(a), and § 1681i(c) of the FCRA, and alleges that plaintiff was damaged in the following ways:


a. Out of pocket expenses associated with disputing the information only to find the information to remain on the credit report;



b. Decreased credit score resulting in higher interest rates on extended lines of credit ( see Exhibit B); c. Emotional distress and mental anguish associated with having incorrect derogatory personal information transmitted about Plaintiff to other people both known and unknown.


(Compl.¶ 20.) The prayer for relief seeks statutory, actual, and punitive damages.


Trans Union points out that as the case progressed, plaintiff's counsel never provided it with any calculation of damages. Federal Rule of Civil Procedure 26(a)(1)(A)(iii) requires that plaintiff provide to defendant as part of the initial disclosures “a computation of each category of damages claimed” and make available the supporting documentation. Plaintiff did not provide a computation or any documentation; instead, counsel simply repeated the categories of damages sought, as set forth in the complaint. Similarly, in response to Trans Union's interrogatory that asked plaintiff for a complete description and calculation of damages, plaintiff's counsel merely provided a vague list of damages categories without any of the requested details, calculation, or documentation.


In plaintiff's opposition brief to Trans Union's motion for summary judgment, plaintiff “voluntarily withdr[ew]” her § 1681e (b) claim. She made no attempt to defend her § 1681i(c) claim and admitted that she did not add a consumer statement to her Trans Union credit file at any time, so that claim fell away. Plaintiff also withdrew her request for punitive damages, which are available only for willful noncompliance with the FCRA, see 15 U.S.C. § 1681n. Plaintiff did not explicitly withdraw her request for statutory damages, but they are available only for willful violations of the FCRA under § 1681n, and she did not argue or produce any evidence that there was a willful violation of the FCRA. Thus, only a § 1681i(a) claim remained, and even that claim was narrowed by plaintiff's statement that she was not seeking damages relating to a student loan, just a car loan.


Plaintiff was left with a claim for actual damages for negligent noncompliance. There were three components to the damages claim: the payment of a higher interest rate on the car loan; outof-pocket expenses; and emotional distress. We discussed each element in our opinion and found no evidence that would reasonably permit a jury to find in plaintiff's favor. Lancaster v. Trans Union, LLC, No. 09 C 1698, 2010 WL 4625345, at *3–4 (N.D.Ill. Nov.4, 2010). With respect to emotional distress, plaintiff's counsel did not point to any evidence in the record-other than a vague and conclusory interrogatory response and plaintiff's boyfriend's speculation-that plaintiff had in fact suffered any emotional distress. Plaintiff also lacked sufficient evidence of out-ofpocket expenses incurred to force Trans Union's compliance with the FCRA. She testified at her deposition that she “really d[id]n't know” how much she had spent-“maybe” $20–and did not specify whether the expenses had been incurred to simply notify Trans Union of a dispute, which would not have been compensable as damages, or whether they were incurred to obtain compliance with the FCRA.


*3 As for the car loan, we found the claim for damages in relation to the interest rate “entirely speculative and without support.” Id. at *3. Plaintiff admitted at her deposition that the lender did not give her an explanation of the interest rate that she received and did not refer to the Discover account and that she did not know whether the lender even reviewed her Trans Union credit report. Nevertheless, plaintiff denied that she had “no evidence to demonstrate that she was entitled to a different interest rate than what she received, no documentation to show that the reporting of the Account impacted her rate, and no evidence to show that the terms were based on a Trans Union report.” (Pl.'s Resp. to Def.'s Rule 56.1 Statement ¶ 114.) Plaintiff based this denial solely on Exhibit B to the complaint, without identifying Exhibit B or explaining how it supported her denial of the statement. As discussed in our opinion, Exhibit B is a largely illegible document. Plaintiff's name appears on it and it relates to a loan, but it is unclear who issued the document. In any event, the document in no way supports plaintiff's claim for damages in relation to the interest rate on the loan.


In response to Trans Union's motions for sanctions, plaintiff filed a consolidated response in which counsel contends that “[b]ased on plaintiff's representations, at no time during the course of this matter did Plaintiff's attorneys believe that Plaintiff did not have any cognizable damages.” (Pl.'s Resp. at 2.) The response also states: “[T]hroughout this case, Plaintiff's attorneys maintained the belief that Plaintiff suffered actual, cognizable economic damages under the FCRA.... Plaintiff's attorneys relied upon Plaintiff's representations and current case law.” (Pl.'s Resp. at 10.)


Regarding plaintiff's counsel's pre-filing inquiry as to damages, the response brief states:


In support of a claim for actual damages, Plaintiff provided her attorneys with a document referencing the unfavorable interest rate from Cornerstone, which was believed to be a direct result from Defendant's reporting of the [Discover] account. See Ex. A. Plaintiff also informed [sic] that she suffered some emotional distress as a result of the continued reporting of an account which she was not liable for. See Exhibit A.


(Pl.'s Resp. at 2.) Exhibit A is plaintiff's declaration, in which she states: “I provided my attorneys with a document which I believed referenced an unfavorable interest rate from Cornerstone, which I believed was a direct result of Defendant's reporting of the account.” (Pl.'s Resp., Ex. A, Pl.'s Decl. ¶ 5.) Plaintiff does not provide any basis for her belief that the rate was a “direct result” of the reporting of the account. She also states: “I was upset and distressed as a result of the continued reporting of an account which I was not liable for.” (Pl.'s Decl. ¶ 6.)


One of plaintiff's attorneys, Adam T. Hill, also filed a declaration, which is attached to the response as Exhibit B. Mr. Hill fails to discuss counsel's pre-filing inquiry. Regarding the issue of damages, he merely states (without referring to a time period): “I ... discussed damages with Plaintiff and believed Plaintiff to have suffered cognizable damages, and continued to believe as a result of Plaintiff's affirmations.” (Pl.'s Resp., Ex. B, Decl. of Adam T. Hill ¶ 7.) Adam J. Krohn, the attorney who filed the complaint on plaintiff's behalf, did not file any declaration.


*4 It does not appear that plaintiff's attorneys conducted any pre-filing investigation as to the sufficiency of two components of plaintiff's claimed damages, emotional distress and out-of-pocket expenses. Plaintiff was never able to explain any emotional injury in detail, as required for a finding of emotional damage, and she admitted that she had not sought any treatment for her alleged distress. Similarly, plaintiff could never do more than venture a guess about her out-of-pocket expenses, and she could not specify any expenses that had been incurred to force compliance with the FCRA. But those elements of damages seem to be tag-alongs. In our view, the crux of the damages issue is the purported evidence of a higher interest rate on the car loan—Exhibit B to the complaint. As discussed above, at the summary judgment stage, plaintiff's counsel relied on Exhibit B without explanation. Incredibly, they continue to rely on it in opposition to the instant motion without explaining what the document is:


In her Verified Complaint, Plaintiff attached as an exhibit documentation evidencing actual damages, illustrating how the decreased credit score resulted in higher interest. Unfortunately, this was the only documentation Plaintiff was able to locate. While this Court found the document speculative and without support, the evidentiary ruling regarding damages cannot suggest that Plaintiff's attorneys did not believe Plaintiff to have suffered actual damages.


(Pl.'s Resp. at 12.)


It is noteworthy that the response refers to Exhibit B as “documentation.” Evidently, counsel use this vague term because they do not know what the document is and have never bothered to find out. They have relied on the document from the very beginning of this case as evidence of damages without any basis for doing so. Exhibit B does not “evidenc[e] actual damages,” nor does it “illustrat[e] how the decreased credit score resulted in higher interest,” and we find it disingenuous and reckless for counsel to persist with this argument even as they are unable to provide a simple description of the document. We also find it significant that plaintiff's attorneys have avoided filing any declarations that describe their pre-filing inquiry. Mr. Hill states that he at some point “believed” plaintiff to have “suffered cognizable damages,” but fails to identify or discuss the basis for his belief. We can only conclude that plaintiff never had a colorable claim for damages caused by a Trans Union FCRA violation. Ascertaining whether plaintiff suffered actual damages as a result of Trans Union's reporting of the Discover account would have been easy to do with minimal fact investigation, but plaintiff's counsel failed to do that. The filing of this case, as well as the continued pursuit of plaintiff's claims (particularly after plaintiff's deposition was conducted, at which she made several damaging admissions), was unreasonable and vexatious. Pursuant to 28 U.S.C. § 1927, plaintiff's counsel will be sanctioned for the full amount of reasonable attorneys' fees and costs incurred by Trans Union in this case.


*5 Three attorneys at Krohn & Moss—Mr. Krohn, Mr. Hill, and Alicia S. Mandolini—filed appearances in this case for plaintiff. A review of the docket and filings shows that Ms. Mandolini was only peripherally involved in the case, and we find that she did not engage in sanctionable conduct under § 1927. Mr. Krohn, on the other hand, filed the complaint without performing an adequate prefiling inquiry and without having a basis for claiming causation or damages. Mr. Hill recklessly continued to pursue the action, which included filing a baseless response to Trans Union's motion for summary judgment. Moreover, Mr. Hill and Mr. Krohn filed a baseless response to the instant motion for sanctions. Accordingly, we will impose sanctions against Mr. Krohn and Mr. Hill.


Given our finding that Trans Union is entitled to its attorneys' fees and costs as a sanction against plaintiff's counsel under § 1927, we need not address its argument that we should impose sanctions on plaintiff's counsel based on the inherent power of this court.


B. 15 U.S.C. §§ 1681n and 1681o

Trans Union also seeks sanctions against plaintiff herself pursuant to the fee-shifting provisions of the FCRA, 15 U.S.C. §§ 1681n (c) and 1681o (b), as well as the inherent power of this court, based on plaintiff's “complete inability to produce any evidence supporting her alleged causation, damages, inaccuracy, or uncoverable factual inaccuracy at numerous stages of the litigation” and her attempts to support her claims based on fraudulently-altered documents. (Def.'s Mem. in Supp. of § 1927 Mot. at 13, 14.)


We entered summary judgment against plaintiff based on her failure to set out facts showing that there was a genuine issue for trial as to causation and damages. To save judicial resources, we did not decide the question of whether Trans Union's reporting was inaccurate. And, although we suspect based on the evidence submitted by Trans Union that plaintiff did submit at least one fraudulently-altered document to opposing counsel and to the court, we did not resolve the issue. Its resolution was unnecessary and would have entailed a significant expenditure of this court's time. For purposes of judicial economy, we decline to consider the issue at this juncture as well. The question, then, is whether we should sanction plaintiff based on the fact that she lacked, from the very beginning, evidence of causation and damages. The law of recoverable damages under the FCRA is not something that we expect a non-lawyer litigant to know. In any event, it appears to the court that plaintiff likely would not be able to pay a monetary sanction. We therefore decline to impose sanctions on plaintiff herself. Plaintiffs' counsel, however, who recklessly filed and continued to litigate this case, will be on the hook for all of Trans Union's reasonable attorneys' fees and costs, and we believe that sanction will suffice (and will likely be collectible). In light of our ruling, which awards Trans Union all of its reasonable fees and costs incurred as a result of plaintiff's counsel's misconduct, we need not reach Trans Union's two remaining motions for sanctions.



CONCLUSION

*6 For the reasons explained above, the motion of defendant Trans Union, LLC for attorneys' fees and costs pursuant to 28 U.S.C. § 1927 and 15 U.S.C. §§ 1681n and 1681o [51] is granted in part and denied in part. We decline to impose sanctions against plaintiff Heather Lancaster under 15 U.S.C. §§ 1681n and 1681o or the inherent power of the court. However, we hold that plaintiff's counsel, Adam J. Krohn and Adam T. Hill, are responsible for Trans Union's fees and costs pursuant to 28 U.S.C. § 1927, and are jointly and severally liable for this award. Trans Union's motions for Rule 37 discovery sanctions and for Rule 11 discovery sanctions [48, 54] are denied as moot.


The parties are directed to confer and attempt informally to agree on an amount of reasonable attorneys' fees and costs by September 13, 2011. If they are able to reach agreement, defendant should notify the court and submit by that date an appropriate proposed order setting forth the agreed amount of attorneys' fees. If the parties cannot reach agreement by September 13, 2011, then they should follow the procedures set out in Local Rule 54.3, with September 14, 2011 being the start of the 91–day clock for the filing of a fee motion.

N.D.Ill.,2011.
Lancaster v. Trans Union, LLC
Not Reported in F.Supp.2d, 2011 WL 3610051 (N.D.Ill.)
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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Re: Lancaster v. Trans Union, LLC, ND Ill. 2011

Postby Administrator » Mon Nov 10, 2014 8:56 pm

Lancaster v. Trans Union, LLC
Not Reported in F.Supp.2d, 2010 WL 4625345
N.D.Ill.,2010.
November 04, 2010


MEMORANDUM OPINION

JOHN F. GRADY, District Judge.

*1 Before the court is defendant's motion for summary judgment, which is granted for the reasons explained below.



BACKGROUND

Plaintiff, Heather Lancaster, sues Trans Union, LLC (“Trans Union”), alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. The case arises from allegedly inaccurate information that appeared on Lancaster's Trans Union credit report regarding a credit card account with Discover Financial Services (“Discover”).FN1


FN1. Discover is not a party to this action.




Plaintiff alleges that Trans Union violated § 1681i(a) of the FCRA by negligently failing to conduct a proper and reasonable reinvestigation concerning the allegedly inaccurate information after receiving notice of the dispute from both plaintiff and Discover; by negligently failing to review and consider all relevant information submitted by plaintiff and Discover; and by negligently failing to delete the inaccurate information from plaintiff's credit report after reinvestigation. Plaintiff also alleges that Trans Union violated § 1681i(c) of the FCRA by negligently failing to note her dispute in subsequent credit reports.FN2


FN2. The complaint also includes a claim for violation of § 1681e(b) of the FCRA for failure to follow reasonable procedures to assure the maximum possible accuracy of plaintiff's credit report, but plaintiff indicates in her brief in opposition to defendant's motion that she “voluntarily withdraws” this claim. The complaint also alleges that Trans Union's conduct was willful, but plaintiff indicates in her brief that she withdraws her request for punitive damages. (Pl.'s Resp. at 11.)




Trans Union moves for summary judgment.



DISCUSSION

A. Summary Judgment Standards

Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). In considering such a motion, the court construes the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir.1999). “Summary judgment should be denied if the dispute is ‘genuine’: ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir.1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).


The court will enter summary judgment against a party who does not “come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question.” McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir.1995). Once the moving party has supported its motion for summary judgment, the “opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in [Rule 56]—set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2).


B. Relevant Facts

The Discover Account

In April 1999, Chad Mullen opened a Discover credit card account that was assigned account number 8527 (the “Account”). At all relevant times, Lancaster was engaged to and lived with Mullen.


On July 5, 2007, Discover added Lancaster to the Account as an “authorized buyer;” according to Discover, an authorized buyer has full charging privileges but is not responsible for repayment of any debts incurred on an account. Citing correspondence from Discover to Mullen (which is attached to the Complaint as Exhibit A), Trans Union maintains that Lancaster was designated as an authorized buyer at Mullen's request. Mullen testified at his deposition that he did not ask Discover to add Lancaster to the Account as an authorized buyer, but admitted that he did contact Discover to request that it allow Lancaster to “speak on [his] behalf” with respect to the Account and that although he did not know it at the time, Discover required that plaintiff be added as an authorized buyer before she would be allowed to discuss the Account with Discover. (Def.'s Rule 56.1 Statement, Ex. C, Dep. of Chad Mullen at 34–35, 40.) Plaintiff contends that she merely wanted to be able to speak with Discover on Mullen's behalf and did not want to be an authorized buyer, but admits that Mullen requested that Discover allow her to speak on his behalf and that Discover “translated that into being an authorized user.” (Def.'s Rule 56.1 Statement, Ex. D, Pl.'s Dep. at 30–32.) Plaintiff also admits that she or Mullen provided Discover with her personal identifying information, including her social security number, when they requested that she be able to speak on Mullen' s behalf. (Pl.'s Dep. at 31.) After Discover made Lancaster an authorized buyer, plaintiff acknowledges that she contacted Discover to discuss the Account and that she possibly might have made payments on Mullen's behalf from their joint checking account.


*2 On September 28, 2007, Mullen received a letter from Discover in response to inquiries Lancaster had recently made about the Account. The letter stated that the Account had been closed to further purchases in March 2005 and that a third-party entity had made a payment arrangement with Discover on Mullen's behalf, but that Discover had not received the agreed-upon payments and had therefore canceled the agreement. It stated that Lancaster had been added to the Account as an authorized buyer on July 5, 2007 and that at Lancaster's request, Discover had removed her from the Account on September 28, 2007. Furthermore, the letter stated: “Updates were sent to the major credit bureau reporting agencies requesting the removal of the account from Ms. Lancaster's credit file. Please allow a reasonable amount of time for the updates to reflect on her credit file.” (Compl., Ex. A, at 1.)


Notwithstanding this representation, Discover did not contact Trans Union at that point to request removal of the Account from Lancaster's credit report. FN3 Trans Union began reporting the Account as an authorized account on Lancaster's credit file FN4 in early November 2007. At all relevant times, Discover reported to Trans Union that Lancaster was authorized on the Account, that there had been several late payments on it, a balance of $2400, a past-due amount of $97, and the remark “acct closed by credit grantor.” Discover did not direct Trans Union to remove the Account from Lancaster's credit file until December 17, 2008. On December 18, 2008, Trans Union processed the request and stopped reporting the Account on Lancaster's file.


FN3. Plaintiff admits that the the only instance in which Discover communicated with Trans Union to request that Trans Union remove the Account from plaintiff's credit file was on December 17, 2008, and that Trans Union complied with that request the following day. (Pl.'s Resp. to Def.'s Rule 56.1 Statement ¶¶ 78–80.) This admission removes as a basis for plaintiff's claim any alleged communications between Discover and Trans Union concerning the Account, see Compl. ¶ 22(c), (e).




FN4. We use the terms “credit report” and “credit file” interchangeably.




Plaintiff's Communications with Trans Union

On June 21, 2007, Lancaster requested and was e-mailed a free copy of her credit report. At this time, the Discover account was included on her report (Discover did not designate Lancaster as an authorized buyer until the following month), but the report did contain several other adverse accounts. The same day, Lancaster (via the internet) initiated a dispute with Trans Union (“the Unrelated Dispute”) requesting an investigation of three of the adverse accounts. Trans Union investigated and on July 19, 2007 sent Lancaster the results of its investigation. Two of the accounts were updated, and one was deleted from her file. The Unrelated Dispute is not the subject of this lawsuit.


On April 30, 2008, plaintiff again requested (via telephone) and was sent a copy of her Trans Union consumer disclosure. By that time, the Discover account appeared on the report. Nearly six months later, on October 16, 2008, Lancaster again requested, and was e-mailed, a copy of her Trans Union consumer disclosure. The Account still appeared on the report.


Trans Union states that it has thoroughly searched its records and has no record of receiving notice of any dispute by Lancaster concerning the reporting of the Account on her credit file. Discover also has no record of receiving notice from Trans Union or Lancaster regarding a Trans Union investigation of the Account in relation to Lancaster. Lancaster, however, has filed an affidavit stating: “In or around December, 2007, or January 2008, I disputed the Discover Financial Services account with Defendant via an online submission” and “In or around September, 2008, I disputed the account by mail.” (Pl.'s Rule 56.1 Statement, Ex. A, Pl.'s Aff. ¶¶ 4, 12.) She “did not save any emails or letters” she sent to dispute the reporting of the Account. (Pl.'s Aff. ¶ 19.)


*3 Lancaster further states that she received correspondence from Trans Union with the results of its investigations via electronic mail in January 2008 and via U.S. mail in October 2008. (Pl.'s Aff. ¶¶ 10, 14.) Trans Union, on the other hand, has no record of any correspondence with Lancaster regarding the Account. Plaintiff has produced two “copies” and two “originals” of the correspondence she claims to have received from Trans Union. Trans Union contends that these documents are fraudulent and that Lancaster fraudulently created them by cobbling together portions of Trans Union's correspondence with Mullen and portions of Trans Union's correspondence with Lancaster regarding the Unrelated Dispute. Trans Union has hired a forensic document examiner, who opines that there is a “strong probability” that one of the documents produced by plaintiff has been altered and cannot reach a conclusion as to the other three documents. (Def.'s Rule 56.1 Statement, Ex. W, Report of Meredith DeKalb Miller, at 9–10). Plaintiff denies that she altered or created any documents relating to Trans Union or the Discover account. (Pl.'s Aff. ¶¶ 24–27.)


C. Plaintiff's § 1681i(a) Claims

The FCRA provides that


if the completeness or accuracy of any item of information contained in a consumer's file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30–day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.


15 U.S.C. § 1681i(a)(1)(A). A credit reporting agency that negligently violates the FCRA is potentially liable for “actual damages,” costs, and attorney's fees. 15 U.S.C. § 1681o. Plaintiff must show that she “suffered damages as a result of the inaccurate information.” Ruffin–Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 608 (7th Cir.2005). “Without a causal relation between the violation of the statute and the loss of credit, or some other harm, a plaintiff cannot obtain an award of actual damages.” Id. (internal quotation marks omitted).


Even if we assume, arguendo, that the information Trans Union reported regarding the Account was inaccurate, that Lancaster notified Trans Union of a dispute, and that Trans Union failed to investigate her dispute, Lancaster has failed to show that she suffered damages as a result of the Account appearing on her credit report.


Lancaster admits that she was never denied credit or prohibited from making any purchases because of a Trans Union credit report. She also admits that she has no evidence that Trans Union furnished a credit report containing the Account to any third party. (Pl.'s Resp. to Def.'s Rule 56.1 Statement, ¶¶ 81–83.) She claims that she suffered damages in the form of a higher interest rate on a car loan from Cornerstone Credit Union (“Cornerstone”) that she and Mullen applied for and obtained in 2008.FN5 Yet Lancaster admits that Cornerstone did not give her an explanation for the interest rate that she and Mullen received, and she has no documentation explaining its basis. She claims that she qualified for a better interest rate but has no evidence to support this claim and does not know what that rate would have been. She admits that she does not know whether Cornerstone reviewed a Trans Union credit report to make its credit decision, that she was never told that the rate she received was based on a Trans Union credit report, and that Cornerstone did not refer to the Discover account during the loan application process. She admits that at the time she applied for the Cornerstone loan, there were at least eight accounts (besides the Discover account) on her credit report that were classified as adverse or delinquent. She also admits that at the time, the Account was listed on the credit report of Mullen, her co-applicant, and that Mullen had a adverse credit history that was “worse” than hers. (Pl.'s Resp. to Def.'s Rule 56.1 Statement ¶¶ 103–113.) Nevertheless, plaintiff (inconsistently) denies the following statement: “Plaintiff has no evidence to demonstrate that she was entitled to a different interest rate than what she received, no documentation to show that the reporting of the Account impacted her rate, and no evidence to show that the terms were based on a Trans Union report.” (Pl.'s Resp. to Def.'s Rule 56.1 Statement ¶ 114.) In support of her disagreement with this statement, plaintiff vaguely cites to Exhibit B to the complaint without explaining what Exhibit B is and without presenting any argument regarding Exhibit B in her response brief. Exhibit B to the complaint is an unidentified, largely illegible document. It is unclear who issued the document, and in any event, it does not support plaintiff's position. Her claim for damages in relation to the interest rate on the Cornerstone car loan is entirely speculative and without support.


FN5. At one point in the litigation, plaintiff also may have claimed that Trans Union's reporting of the Account caused her to obtain an unfavorable interest rate on a 2007 student loan. In her response to Trans Union's statement of material facts, however, plaintiff states that she is “not seeking damages regarding a higher interest rate” on the student loan. (Pl.'s Resp. to Def.'s Rule 56.1 Statement, ¶¶ 91–100).




*4 Plaintiff also claims that she “undoubtedly” suffered out-of-pocket expenses associated with her alleged attempts to dispute the reporting of the Account. (Pl.'s Resp. at 8.) At her deposition, when asked for an estimate of her expenses incurred in relation to the dispute, plaintiff stated: “I really don't know. Maybe—$20 maybe. For the paper and stamps and—little stuff like that.” (Pl.'s Dep. at 128–29.) She admits that she does not have receipts for these expenses.


Expenses incurred simply to notify a credit reporting agency of an error, and not to force compliance with a specific provision of the FCRA, are not compensable as actual damages for a violation of the FCRA. Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 474 (2d Cir.1995). Plaintiff's vague and unsupported guess about her expenses, without specification as to whether they were incurred to force compliance with the FCRA as opposed to notifying Trans Union of a dispute, is not competent evidence of damages.


Plaintiff also fails to come forth with sufficient evidence of any emotional distress.FN6 The Seventh Circuit has “a strict standard for a finding of emotional damage” because it is so “easy to manufacture.” Ruffin–Thompkins, 422 F.3d at 609. The circumstances of an emotional injury must be explained in reasonable detail, and a plaintiff cannot rely on conclusory statements. Id. Lancaster admits that she has not sought medical, psychiatric, or psychological treatment for her alleged distress. (Pl.'s Resp. to Def.'s Rule 56.1 Statement ¶ 121.) All we have is her conclusory interrogatory response that she experienced emotional distress and mental anguish, and Mullen's speculation, which he was unable to tie to Trans Union in particular, that Lancaster was “upset, depressed, I guess.” (Mullen Dep. at 82–83.) Plaintiff does not satisfy the Seventh Circuit's high threshold for proof of damages for emotional distress.


FN6. Aside from citing case law for the general proposition that damages for emotional distress are recoverable for violations of the FCRA, plaintiff does not even argue in her response brief that she is entitled to damages for emotional distress, but she did claim emotional distress in interrogatory answers. We address the issue because she does not affirmatively state that she abandons her claim for these damages.




Because plaintiff has failed to produce evidence of damages that can be attributed to Trans Union, Trans Union's motion for summary judgment on the § 1681i(a) claim will be granted, and we need not address Trans Union's myriad other arguments as to this claim.


D. Plaintiff's § 1681i(c) Claim

The complaint includes an allegation that Trans Union violated 15 U.S.C. § 1681i(c) by failing to note Plaintiff's “dispute of the inaccurate information and in subsequent consumer reports.” (Compl.¶ 22(g).) Section 1681i(c), which relates to a consumer's right to add to her file a brief statement setting forth the nature of a dispute in the event that a reinvestigation does not resolve a dispute, see § 1681i(b), states:


Whenever a statement of a dispute is filed, unless there is reasonable grounds to believe that it is frivolous or irrelevant, the consumer reporting agency shall, in any subsequent consumer report containing the information in question, clearly note that it is disputed by the consumer and provide either the consumer's statement or a clear and accurate codification or summary thereof.


*5 One of the showings plaintiff must make to succeed on this claim is that she filed a statement of dispute with Trans Union upon completion of its reinvestigation (which plaintiff asserts resulted in a verification of the Account). See Quinn v. Experian Solutions, No. 02 C 5908, 2004 WL 609357, at *7 (N.D.Ill. Mar.24, 2004). But she admits that she did not add a consumer statement to her Trans Union credit file at any time. (Pl.'s Resp. to Def.'s Rule 56.1 Statement ¶ 64.) And in plaintiff's response brief, she makes no attempt to defend her § 1681i(c) claim. Accordingly, defendant's motion for summary judgment will be granted on this claim as well.



CONCLUSION

For the reasons explained above, the motion of defendant Trans Union, LLC for summary judgment [34] is granted.

N.D.Ill.,2010.
Lancaster v. Trans Union, LLC
Not Reported in F.Supp.2d, 2010 WL 4625345 (N.D.Ill.)
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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