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Thomas Bolick, et al v. Dfs Services LLC


September 16, 2011


The opinion of the court was delivered by: Rufe, J.


Before the Court are Motions to Dismiss and for Summary Judgment filed by Defendant DB Servicing Corporation ("Discover"), successor to Defendant DFS Services LLC, et al., and a Motion for Partial Summary Judgment filed by pro se Plaintiff Thomas Bolick. Because matters outside the pleadings have been presented to the Court by both Parties, the Court will also treat the pending Motion to Dismiss as one for Summary Judgment. *fn1


The basis of this lawsuit is pro se Bolick's claim that Defendant Discover, the servicer of his Discover business credit card, falsely reported to Equifax Information Systems LLC ("Equifax"), a credit reporting agency, that Bolick's account was past due, with a status of "charge-off." *fn2

This dispute arose out of a $410.26 purchase from Linens N' Things, a now out-of-business home goods store. *fn3 Bolick made the purchase using a credit card issued by non-party

Discover Bank ("the Bank") in June 2008. *fn4 At some point after the purchase, Bolick contacted Discover, claiming that he was entitled to a refund for the $410.26 charge because the goods purchased were never delivered. *fn5 The only document Bolick presented in support of his claim was an illegible document he claimed was a return receipt for the purchase. *fn6 Discover contacted Linens N' Things to investigate the claim. In response to Discover's query, the store submitted a receipt reflecting that the purchase was valid. *fn7 On that basis, Discover refused to credit Bolick's account. Because Discover refused to credit his account, Bolick stopped making the required payments towards his Discover business credit card entirely. *fn8

Bolick officially disputed the accuracy of his credit account balance and status with Equifax on three occasions. Each time, Equifax notified Discover, and Discover investigated the account. After each investigation, Discover reported to Equifax that the account's balance and delinquent status were accurate. *fn9

On February 28, 2010, after nine months of non-payment, the balance of Plaintiff's Discover account ($952.14) was charged off. *fn10 That month, Bolick filed a complaint against non-party Discover Bank ("the Bank") in the Northumberland County Court of Common Pleas, alleging that he did not owe the disputed sum, and obtained a default judgment on March 26, 2010 in the amount of $2,084.50. *fn11 Subsequently, the Bank challenged the Default Judgment against it by filing a Writ of Certiorari Review in the Northumberland County Court of Common Pleas, asserting that the Default Judgment was void for lack of jurisdiction. The Court of Common Pleas agreed, and vacated the default judgment on February 7, 2011. *fn12

Bolick's nine-count complaint alleges that the defendants have violated the Fair Credit Reporting Act ("FCRA"), the Fair Debt Collections Practices Act ("FDCPA"), Pennsylvania's Fair Credit Extension Uniformity Act ("FCEUA"), Pennsylvania's Unfair Trade Practices and Consumer Protection law ("UTPCPL" ), and committed several torts against Bolick, including defamation, common law fraud, civil extortion, negligence, and invasion of privacy.*fn13


Under Federal Rule of Civil Procedure 56(a), summary judgment is proper where, viewing the evidence in the light most favorable to the nonmoving party and drawing all inferences in favor of that party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. *fn14 A fact is "material" if it could affect the outcome of the suit, given the applicable substantive law. *fn15 A dispute about a material fact is "genuine" if the evidence presented "is such that a reasonable jury could return a verdict for the nonmoving party." *fn16

A party moving for summary judgment has the initial burden of supporting its motion by reference to admissible evidence. *fn17 If this initial requirement is satisfied, the burden shifts to the nonmoving party to set out specific facts showing a genuine issue for trial. The nonmoving party may meet this burden either by submitting evidence that negates an essential element of the moving party's claims, or by demonstrating that the movant's factual evidence is insufficient to establish an essential element of its claims. *fn18 The facts the non-movant relies on for these purposes also must be demonstrated by admissible evidence.*fn19

In considering a summary judgment motion, the Court does not weigh the evidence or make credibility determinations; "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." *fn20


Bolick's complaint rests entirely on his contention that Discover inaccurately reported his account as "past due" with a status of "charge off." Because Bolick has failed to submit any evidence to substantiate his claim that Discover inaccurately reported his Discover account's status, each count of his complaint fails. Bolick's FCRA, *fn21 UTPCPL, *fn22 breach-of-contract, *fn23negligence, invasion-of-privacy, *fn24 and defamation *fn25 claims require him to plead that his credit information was inaccurately reported. *fn26

Plaintiff claims that he was improperly charged $410.26 for items he purchased and either did not receive, received in an unacceptable condition, or returned. The sole evidence Plaintiff has introduced in support is the Northumberland Magisterial Court's default judgment-which was vacated by the Northumberland County Court of Common Pleas on February 7, 2011. *fn27 It is well established that a void judgment is a "nullity." *fn28

On the other hand, Defendants submit an affidavit from a Discover employee, stating that 1) Plaintiff was unable to substantiate that the charge was improper; 2) that Linens N' Things provided documentation verifying the purchase; and 3) that the only documentation submitted by Plaintiff was a blank and illegible receipt. Defendants also attached the "documentation" Plaintiff submitted in support of his claim, which as represented, is a blank and illegible receipt with the heading "Linens N' Things." In addition, Discover's evidence shows that in July 2009, Plaintiff stopped making payments on his Discover Account. After nine months of non-payment, in February 2010, the balance of his account ($952.00) was charged off. Thus, it was not inaccurate for Discover to report the account as "past due" with a status of "charge off/collection."

In sum, discovery has not revealed a shred of evidence that Bolick did not owe the original disputed sum. Thus, Defendant's Motion for Summary is granted, and Plaintiff's motion for partial summary judgment is denied.

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