Opinion
No. 03-2220 B/A.
March 30, 2005
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DIRECTING CLERK TO ENTER JUDGMENT
This lawsuit was brought by the Plaintiff, Daniel T. Robinson, against the Defendants, American Honda Finance Corporation and Bryce Freeman, an authorized representative of the corporate defendant, (collectively, "Honda"), alleging violation of the Federal Credit Reporting Act, codified at 15 U.S.C. § 1692, et seq. ("FCRA"). Specifically, Robinson averred that Honda unlawfully furnished information relating to the Plaintiff to a consumer credit reporting agency which the Defendants knew or should have known to be inaccurate. The Plaintiff became aware of the Defendants' alleged action while in the application process for a new home mortgage in February 2003. On June 15, 2004, this Court denied Robinson's motion for a temporary injunction and subsequently instructed the parties to brief issues relating to FCRA and whether the Plaintiff could maintain an action under the statute on the facts of this case. In accordance with the Court's instruction, Honda filed the instant motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Robinson, who is represented by counse, has not responded to the motion, even though the deadline for such response has long expired.
The Rule states in pertinent part that a
. . . judgment . . . shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions 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 a judgment as a matter of law.
Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988). In reviewing a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). When the motion is supported by documentary proof such as depositions and affidavits, the nonmoving party may not rest on his pleadings but, rather, must present some "specific facts showing that there is a genuine issue for trial."Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356. These facts must be more than a scintilla of evidence and must meet the standard of whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The "judge may not make credibility determinations or weigh the evidence." Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994).
The purpose of FCRA is to ensure "that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information . . ." 15 U.S.C. § 1681(b); Trikas v. Universal Card Servs. Corp. (UCS), 351 F.Supp.2d 37, 41 (E.D.N.Y. 2005). Sections 1681n and 1681o of the statute impose liability to a consumer for willful violations of the statute's provisions. The Plaintiff has alleged that Honda violated § 623(a)(1)(A) of the statute, which states in pertinent part that "[a] person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate." 15 U.S.C. § 1681s-2(a)(1)(A). There is, however, no private right of action under subsection (a). See 15 U.S.C. § 1681s-2(c)(1) ("sections [ 15 U.S.C. §§ 1681n, 1681o] do not apply to any violation of . . . subsection (a) of this section"); see also Beattie v. Nations Credit Fin. Servs. Corp., No. 02-1744, 2003 WL 21480586, at *5 (4th Cir. May 27, 2003); Gibbs v. SLM Corp., 336 F.Supp.2d 1, 11 (D. Mass. 2004); Zotta v. NationsCredit Fin. Servs. Corp., 297 F.Supp.2d 1196, 1204 n. 6 (E.D. Mo. 2003);Stafford v. Cross Country Bank, 262 F.Supp.2d 776, 782-83 (W.D.Ky. 2003); Carney v. Experian Info. Solutions, Inc., 57 F.Supp.2d 496, 502 (W.D. Tenn. 1999). Subsection (d) limits enforcement of the provisions of § 1681s-2(a) exclusively to "Federal agencies and officials and . . . State officials . . ." 15 U.S.C. § 1681s-2(d); Gibbs, 336 F.Supp.2d at 11; Zotta, 297 F.Supp.2d at 1204 n. 6. As the Plaintiff cannot maintain an action under § 1681s-2(a), the Defendant's motion for summary judgment as to that claim is GRANTED.
Unlike subsection (a), some courts have assumed § 1681s-2(b) is amenable to consumer lawsuits. See Downs v. Clayton Homes, Inc., Nos. 03-5259, 03-6055, 2004 WL 253363, at *2 (6th Cir. Feb. 9, 2004) (court assumed for purposes of motion that a private right of action existed under subsection (b)); Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 629 (5th Cir. 2002) (without deciding the issue, the court noted that § 1681s-2(b) "it appears" to impose civil liability permitting a private right of action); Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1060 (9th Cir. 2002) (based on language of the statute and legislative history, court concluded private right of action exists under subsection (b)); Gibbs, 336 F.Supp.2d at 11 ("While there is not unanimity on the issue, the majority of courts that have considered the issue have concluded that there is a private cause of action under § 1681s-2(b) as there is no statutory ban on such a claim"); contra Carney, 57 F.Supp.2d at 502 (the magistrate judge held that "an individual . . . cannot state a claim under 15 U.S.C. § 1681s-2(b)). While not deciding the issue, the Court will assume for purposes of this motion that a private right of action does exist.
Subsection (b) provides as follows:
After receiving notice . . . of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall
(A) conduct an investigation with respect to the disputed information;
(B) review all relevant information provided by the consumer reporting agency;
(C) report the results of the investigation to the consumer reporting agency;
(D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and
(E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation . . ., for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation promptly —
(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of information.15 U.S.C. § 1681s-2(b)(1).
In Downs, the Sixth Circuit, following the Fifth Circuit's decision in Young, analyzed the subsection (b) claim as follows:
Under the FCRA, those who furnish information to consumer reporting agencies have two obligations: (1) to provide accurate information; and (2) to undertake an investigation upon receipt of a notice of dispute regarding credit information that is furnished. . . . [T]he plaintiff must show that the furnisher received notice from a consumer reporting agency, not the plaintiff, that the credit information is disputed.Downs, 2004 WL 253363, at *2 (citing Young, 294 F.3d at 639-40). At no point in this case, which has proceeded almost to the trial stage with proposed pretrial orders having been filed by both parties, has the Plaintiff asserted that the furnisher, Honda, received notice from a consumer reporting agency that the credit report item at issue here was inaccurate. Rather, he continues to insist that he repeatedly informed Honda of the inaccuracy to no avail. As notification by a plaintiff does not satisfy the statute's notice requirement, Robinson has no claim under § 1681s-2(b). See id. ("In this case, the Downses did not allege that they had filed a dispute with a credit reporting agency. Accordingly, they had no claim under the FCRA.")
For the reasons set forth herein, the motion of the Defendant for summary judgment is GRANTED and the Clerk of Court is directed to enter judgment in accordance herewith.
IT IS SO ORDERED.