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CUSHMAN v. TRANS UNION CORP.

March 29, 1996

JENNIFER CUSHMAN, Plaintiff,
v.
TRANS UNION CORP., Defendant.



The opinion of the court was delivered by: JOYNER

 Joyner, J.

 March 29, 1996

 INTRODUCTION

 We address today the motion for summary judgment filed by the defendant, Trans Union Corporation ("Trans Union"), in this case arising under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681t (the "FCRA"). The plaintiff in this action, Jennifer Cushman, alleges that an unknown third party used her identifying information to open credit card accounts with American Express ("AmEx"), Citibank Visa ("Citibank"), and Chase Manhattan Bank ("Chase") (collectively, the "creditors"). The cards were used, without Ms. Cushman's knowledge or approval, to charge approximately $ 2,200 in goods and services. When no payment was made on the accounts, the creditors notified Trans Union, which has since published credit reports stating that Ms. Cushman defaulted on three credit card accounts.

 On September 15, 1994, Ms. Cushman contacted Trans Union, informing it that a third party had opened the accounts in her name and requesting that the disputed entries be purged from the credit report. Trans Union investigated the matter by re-verifying the identifying information with the three creditors and inquiring whether the consumer had reported that the account in question had been opened fraudulently. AmEx and Chase notified Trans Union that they had not received any such notification, and that the identifying information was accurate. Thus, Trans Union declined to purge the credit report of the AmEx and Chase entries. The Citibank entry was purged after it could not be verified. *fn1"

 On November 2, Ms. Cushman again contacted Trans Union to dispute the credit report, offering to provide "whatever affidavits are necessary" to rid the report of the disputed entries. Trans Union confirmed that there had been no fraud reported with respect to the Chase account. As for the AmEx account, Trans Union conducted the same investigation it had undertaken in response to the first inquiry. Once it determined that the identifying information was accurate and that there had been no report of fraud submitted regarding the accounts, Trans Union concluded its investigation.

 Ms. Cushman filed the instant complaint on March 24, 1995, in which she asserts primarily that Trans Union failed to reinvestigate the matter in accordance with the FCRA's dictates. Ms. Cushman also seeks relief pursuant to Vermont's Fair Credit Reporting Act and under the tort theory of defamation. After discovery was taken, Trans Union filed the instant motion, in which it argues that it is entitled to summary judgment on the following grounds: (1) that in light of the record generated during discovery, its investigative procedures were indisputably within the FCRA's bounds; and (2) that Ms. Cushman has failed to advance facts to support the inference that she incurred harm as a result of Trans Union's conduct. Finally, Trans Union argues that there is no evidence to support the inference that Trans Union acted with malice or with the specific intent to injure Ms. Cushman. Thus, it contends that the FCRA preempts the defamation claim, and that the evidence does not support a punitive damages award. We turn now to address Trans Union's motion.

 STANDARD OF REVIEW

 Under our rules of civil procedure, we are authorized to award summary judgment "if the pleadings, depositions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Thus, the court's responsibility is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Liberty Lobby, 477 U.S. at 249). Further, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 ANALYSIS

 The FCRA was enacted to protect consumers from the inclusion of inaccurate information in reports used to evaluate their creditworthiness. § 1681(b). Thus, it allows consumers to recover compensatory damages and costs, including a reasonable attorney's fee, in the event that a consumer reporting agency negligently fails to comply with any of the FCRA's requirements. § 1681o. If the consumer reporting agency's non-compliance with the FCRA is willful, the consumer may also recover punitive damages. § 1681n. In the instant case, Ms. Cushman alleges that Trans Union acted in violation of § 1681i, which provides, in relevant part, as follows:

 
If the completeness or accuracy of any item of information contained in his file is disputed by a consumer, and such dispute is directly conveyed to the consumer reporting agency by a consumer, the consumer reporting agency shall within a reasonable period of time reinvestigate and record the current status of that information. . . . If after such reinvestigation such information is found to be ...

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