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Schweitzer v. Equifax Information Solutions LLC

September 21, 2010


The opinion of the court was delivered by: Conti, District Judge.


I. Introduction

In this memorandum opinion the court considers a motion for summary judgment (the "Motion") (Docket No. 88), filed by defendant Equifax Information Solutions LLC*fn1 ("defendant" or "Equifax) with respect to all federal and state common law claims asserted against defendant*fn2 by plaintiff William A. Schweitzer, Jr.*fn3 ("plaintiff" or "Mr. Schweitzer") in the complaint*fn4 (Docket No. 1-2.) Mr. Schweitzer's federal claims asserted on his own behalf consist of five alleged violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681 et seq., including: 1) count I -- failure to follow reasonable procedures to maintain accuracy, 15 U.S.C. §1681e; 2) count II -- failure to reinvestigate on consumer request, 15 U.S.C. §1681i(a); 3) count III -- failure to delete information found to be inaccurate, incomplete or unverified, 15 U.S.C. §1681i(a)(5)(C)*fn5 ; 4) count IV -- failure to notify users of deletion of information from file, 15 U.S.C. § 1681i(d); and 5) count V -- failure to follow reasonable procedures to maintain accuracy, 15 U.S.C. § 1681k. In count VI plaintiff alleges a state common law claim for information negligently supplied for the guidance of others, relying upon Restatement (Second) of Torts § 552.

After consideration of the Motion, plaintiff's Response to Defendant Equifax Information Services LLC's Motion for Summary Judgment, ("Response to the Motion") (Docket No. 94), defendant's Consolidated Statement of Undisputed Material Facts ("C.S.F.") (Docket No. 97);*fn6 and other submissions of the parties, the court will grant defendant's Motion with respect to all six counts because plaintiff failed to adduce sufficient evidence to withstand the Motion.

II. Factual Background and Procedural History

A. Mr. Schweitzer's Prior Lawsuits Against EquifaX

Prior to the instant action, Mrs. Schweitzer and plaintiff filed a number of lawsuits against Equifax in state court claiming various items were misreported on credit reports generated by Equifax and that this misrepresentation hindered their ability to obtain credit, financing, and refinancing at competitive rates. (Compl. ¶¶ 104-06, 136.) Mrs. Schweitzer and plaintiff separately filed the first two lawsuits. On August 30, 2006, Mrs. Schweitzer filed a lawsuit at docket number CV-1123-06 in Magisterial District Court*fn7 No. 05-2-06, of Allegheny County, Pennsylvania. (C.S.F. ¶ 35.) On September 14, 2006, plaintiff filed a lawsuit in the same magisterial district court at docket number CV-1193-06. (C.S.F. ¶ 63.) In these state actions, the asserted claims were limited to common law claims of misrepresentation and negligence relying upon section 552 of the Restatement (Second) of Torts. (C.S.F. ¶¶ 37, 63.)

Plaintiff attempted to come to agreeable terms regarding the settlement of CV-1193-06 with Equifax, but refused to sign a settlement agreement relating to the claims in that case. (Compl. ¶¶ 13, 66.) Due to the failure to reach a settlement with Equifax regarding his claims in CV-1193-06, on December 29, 2006, plaintiff filed a new complaint in the same magisterial district court at docket number CV-1588-06. (Compl. Ex. A at 6.) Plaintiff reasserted the claim of misrepresentation and negligently supplying information relying upon section 552 of the Restatement (Second) of Torts. (Compl. ¶ 13.) Plaintiff's cause of action at CV-1588-06 was plaintiff's second lawsuit in state court, but it is referred to in the pleadings as "Schweitzer I".*fn8

On March 1, 2007, plaintiff obtained a judgment against Equifax in Schweitzer I in magisterial district court in the amount of $4,113. (C.S.F. ¶ 70, see "Schweitzer I" Materials*fn9 (Docket No. 99-1) at 16.) Equifax paid the judgment by check, which plaintiff cashed. (C.S.F. ¶ 71.) The parties agree that the payment Equifax made to plaintiff in CV-1588-06 covered all plaintiff's claims through December 29, 2006, as demonstrated by plaintiff's signature on the cashed check. (Id. ¶ 72, see Ex. E, Def.'s Concise Statement of Material Facts in Support of the Motion for Summary Judgment ("Def.'s Concise S.M.F.") (Docket No. 91-5) at 2.)

On April 12, 2007, plaintiff filed a third lawsuit against Equifax in magisterial district court at docket number CV-355-07. Plaintiff alleged ongoing violations under the same tort theory as the first two suits. Equifax did not defend this lawsuit and plaintiff obtained a default judgment in his favor in the amount of $8,134.00. (Compl. ¶¶ 16, 22.) On August 3, 2007, Equifax appealed the default judgment, resulting in a case commencing de novo in the Court of Common Pleas, Allegheny County, Pennsylvania, at case number AR-07-8414. (Id. ¶ 23.) (See AR-07-8414, Ct. Com. Pl. Allegheny Cnty., Pa. (Doc. 1)).

On or about August 27, 2007, plaintiff filed a complaint at the same case number, AR-07-8414, again alleging defendant's continuing violations of the original tort theory plaintiff asserted. (Id. ¶ 24); see AR-07-8414, Ct. Com. Pl., Allegheny Cnty., Pa. (Doc. 2)). On September 14, 2007, defendant removed that case to the United States District Court for the Western District of Pennsylvania at Civil Action No. 07-1243, claiming that the case arose under the FCRA. (Id. ¶¶ 25-26.) On October 29, 2007, the district court ordered a remand of the lawsuit. (Id. ¶ 37.) The state case at docket number AR-07-8414 was dismissed without prejudice.*fn10

On March 14, 2008, plaintiff filed in state court a complaint against defendant alleging violations of FCRA and a state common law claim under a theory of information negligently supplied for the guidance of others relying upon Restatement (Second) of Torts § 552. (Id. ¶¶ 144-60.) On April 7, 2008, that case, which is the subject of this Motion, was removed to federal court. (Docket No. 1.)

B. Background of Equifax's Procedures as a Consumer Reporting Agency

As defined by FCRA, Equifax is a consumer reporting agency. (C.S.F. ¶ 1.) Equifax creates and disseminates credit reports from information received from approximately 40,000 sources, including creditors, public records, merchants, and others. (Id. ¶¶ 2-3.) The credit information Equifax compiles from its sources is stored in a computer database which contains approximately two hundred million names and addresses as well as over one billion trade lines containing information about consumer accounts, judgments, and other data. (Id. ¶ 3.) Equifax receives reports of millions of accounts from lenders on a daily basis. Lenders provide identifying information such as address, social security and date of birth. This information is used to link the credit items to the appropriate individual consumer. (Id. ¶ 4.) Credit reports are provided only to subscribers who have a permissible purpose in obtaining the reports, and Equifax only uses sources of credit information ("data furnishers") if they are determined to be reasonably reliable. (Id. ¶¶ 2, 5.) Data furnishers are considered to be reliable either on the basis of Equifax's prior experience with the source or on the basis of the particular source's reputation for reliability. (Id. ¶ 5.)

Equifax's procedures to maintain the accuracy of its consumer reports begin when a company requests to become a customer and data furnisher, as Equifax conducts an investigation of all such companies at that time. (Id. ¶¶ 6-8.) A new data furnisher signs an agreement for service, which includes certifications under the FCRA and applicable state laws, as well as stating the data furnisher will provide accurate information, will perform reinvestigations upon request, and will obtain consumer reports only for valid, permissible purposes pursuant to § 1681b of the FCRA. (Id. ¶ 9.) Equifax conducts tests to assure information provided by data furnishers is accurately loaded into its database and employs procedures to assure information is being reported in the proper format. (Id. ¶¶ 10-11.)

Equifax handles disputes from consumers regarding the accuracy of the contents of their credit files through procedures designed to verify the information obtained from particular sources. Equifax initiates these procedures upon receipt of a dispute in accordance with the duty imposed by the FCRA to provide accurate information and verify information when requested to do so. (Id. ¶¶ 12-14.) A consumer may dispute information in the consumer's credit file via telephone, mail, internet, or facsimile. (Id. ¶ 15.) When Equifax receives a dispute, it makes an electronic record of the dispute, on or about the time it is received, in a computer system referred to as "ACIS." (Id. ¶ 26.) The ACIS record will eventually show when and how the dispute was received, as well as the steps taken in the reinvestigation of the dispute and the date the results of the reinvestigation were sent to the consumer. (Id. ¶¶ 27-28.)

Upon receipt of a dispute in which the consumer has provided sufficient identifying information such as name, address, and social security number, Equifax begins investigation by locating the consumer's file in its database (Id. ¶ 16.) If the consumer has not provided sufficient information to allow Equifax to locate the file, then Equifax proceeds by sending a letter to the consumer requesting additional information. (Id. ¶ 17.) If Equifax is able to locate the file, it reviews and considers any relevant information provided by the consumer pertaining to the nature of the dispute as well as reviewing the contents of the file. If the consumer provides authentic, relevant, and otherwise appropriate documentation, and if the nature of the documentation is sufficient, Equifax will make any necessary updates to the consumer's credit file. (Id. ¶¶ 18-19.)

If further investigation of the consumer's dispute is necessary, however, Equifax communicates with the data furnisher to advise it about the dispute, the receipt of any relevant information, and the consumer's account information as it currently appears. (Id. ¶ 20.) These communications between Equifax and the data furnisher are typically made through a process in which Equifax electronically transmits a form to the data furnisher called an Automated Consumer Dispute Verification ("ACDV"). (Id. ¶ 22.) An ACDV is an automated communication from Equifax to the data furnisher. Once the data furnisher receives the ACDV it performs its own investigation and sends the ACDV back to Equifax to verify, modify, or delete the contested information. (Id. ¶¶ 23-24.) Equifax makes any necessary updates to the credit file and sends the consumer a copy of the reinvestigation results, an updated disclosure, and a copy of the consumer's rights under the FCRA. The consumer's rights under the FCRA include the right to add a consumer statement to the credit file if the consumer does not agree with the reinvestigation results. (Id. ¶ 25.

C. Six Disputed Items

Six disputed items provide the foundation for plaintiff's claims of inaccuracy in his credit report. In Schweitzer I, plaintiff obtained a judgment in his favor in the state magisterial court on claims of misrepresentation in his credit report.*fn11 In the instant action, plaintiff claims his credit report continues to be in error and asserts the following six items are inaccurately reported:

1) the $147,000 tax lien bearing lien number GD956532; 2) an AmeriCredit account beginning with 40166*; 3) a Duquesne Light Company account ending in *6349; 4) an EMC Mortgage account ending in *0231; 5) a First Premier account ending in *0301; and 6) a S&T Bank account ending in *9850. (Compl. ¶ 87.) Based upon the alleged inaccuracy of these six items and the alleged resultant harm suffered, plaintiff claims defendant committed five separate violations of the FCRA and is liable under a theory of negligently supplying information for the guidance of others, relying upon section 552 of the Restatement (Second) of Torts. (Id. ¶¶ 144-60).

1. Mr. Schweitzer's Efforts to Dispute the Six Items

Between October 21, 2005 and December 7, 2005, plaintiff contacted Equifax to dispute four of the six items involved in the present action, including disputes for the $147,000 tax lien, AmeriCredit account 40166*, EMC Mortgage account *0231 and First Premier account *0301. C.S.F. ¶¶ 77, 82, 86, 89, 99, 103, 108.) Equifax did not receive disputes for Duquesne Light Company account *6394 or for S&T Bank account *9850. (C.S.F. ¶¶ 96, 114.)

a. Tax Lien GD956532

On October 21, 2005, Equifax received a dispute letter regarding the $147,000 tax lien bearing number GD956532 (C.S.F. ¶ 77.) When plaintiff sent appropriate documentation showing the lien was released, defendant updated the report to reflect the receipt and sent plaintiff a copy of his updated credit file on November 18, 2005. (Id. ¶ 78, Def.'s Concise S.M.F., Ex. F, pt. 1 (Docket No. 91-6) at 18.)

b. AmeriCredit

On October 21, 2005, Equifax received the first of three dispute letters from plaintiff regarding AmeriCredit account 40166*. (C.S.F. ¶ 82.) Equifax reinvestigated these disputes by following its typical procedure of sending an ACDV to AmeriCredit, including a description of plaintiff's dispute and the current information on file, as well as advising AmeriCredit that plaintiff claimed the account was his daughter's account. (Id. ¶ 84; Def's Concise S.M.F., Ex. F, pt. 2 (Docket No. 91-7) at 1.) While plaintiff claimed that the account was for an automobile owned solely by his daughter, AmeriCredit's response in the reinvestigation showed that the account information was accurately reported. (Id. ¶¶ 83-85.) On November 28, 2005, Equifax received a second letter of dispute regarding the AmeriCredit account and on December 7, 2005, received a third letter of dispute regarding the account. (Id. ¶¶ 86, 89.) Equifax followed its reinvestigation procedure by sending an ACDV to AmeriCredit for each dispute. AmeriCredit verified that the account was accurately reported. (Id. ¶¶ 87, 90.) On December 2, 2005, Equifax sent plaintiff the results of the second reinvestigation and on December 23, 2005, sent the results of the third reinvestigation. (Id. ¶¶ 88, 91, Def's Concise S.M.F., Ex. F, pt. 2 at 8.)

Two AmeriCredit accounts were originally linked to plaintiff, including one related to his Lincoln Towncar and one related to his daughter's Pontiac. (Id. ¶ 92.) In March 2006, plaintiff sued AmeriCredit based on the two accounts linked to his credit file. (Compl., Ex. A (Docket No. 1-3 at 5.) In August 2006, plaintiff prevailed in that lawsuit and AmeriCredit notified Equifax to cease its reporting with respect to AmeriCredit as a creditor on two separate accounts. (Compl., Ex. A (Docket No. 1-3) at 5.) Plaintiff, however, could not recall whether AmeriCredit account 40166* is related to the Towncar or to the Pontiac. (C.S.F. ¶ 93.) Plaintiff believes the report of the account is wrong in either case. Plaintiff claims he paid for the Towncar in full, but that it was falsely reported as being charged off when he filed for bankruptcy. (Id. ¶ 94.)*fn12

Plaintiff claims he never signed for the loan for his daughter's Pontiac and believes the individual who financed both cars, Tom Peniveira, forged plaintiff's name on the documents related to the Pontiac. (Id. ¶ 95.)*fn13

c. EMC Mortgage

On October 21, 2005, Equifax received the first of two disputes concerning the EMC Mortgage account *0231. (C.S.F. ¶ 99.) On December 7, 2005, Equifax received the second dispute letter concerning the account. (Id. ¶ 103.) In both letters, Mr. Schweitzer claimed the mortgage was paid in full. (Id. ¶¶ 100, 104.) For both disputes, Equifax completed reinvestigation by researching its files and reporting back to the plaintiff that the account was currently and correctly being reported with a zero balance. (Id. ¶ 101.) On November 18, 2005, Equifax sent plaintiff the results of the first reinvestigation, and on December 23, 2005, Equifax sent plaintiff the results of the second reinvestigation. (Id. ¶¶ 102, 106; Def's Concise S.M.F., Ex. F, pt. 2 at 8.)

d. First Premier

On October 21, 2005, Equifax received a dispute letter from plaintiff regarding the First Premier account *0301, stating the account contained inaccurate information. (C.S.F. ¶¶ 108-09.) Equifax followed reinvestigation procedure by sending an ACDV to First Premier, providing a description of plaintiff's dispute and the current information reporting on the file, as well as advising First Premier about plaintiff's claim of inaccurate information. (Id. ¶ 110.) According to First Premier's response, the account information was accurately reported, and Equifax sent plaintiff a copy of his updated credit file reflecting this response on November 18, 2005. (Id. ¶ 111; Def.'s Concise S.M.F., Ex. F, pt. 1 at 19.) Plaintiff claims that the account was a deposit account ...

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