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PODELL v. CITICORP

February 5, 1996

GARY A. PODELL, Plaintiff, against CITICORP. DINERS CLUB, INC., CITICORP CREDIT SERVICES, INC., NISSAN MOTOR ACCEPTANCE CORPORATION, SALON FURNITURE CO., TRW, INC., TRANS UNION CORPORATION, and EQUIFADX, INC., Defendant.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:

 Plaintiff Gary A. Podell brought this action against defendants Citicorp Diners Club, Inc. ("Diners Club"), Citicorp Credit Services, Inc. ("Credit Services"), Nissan Motor Acceptance Corporation ("Nissan"), Salon Furniture Co. ("Salon"), TRW, Inc. ("TRW"), Trans Union Corporation ("Trans Union"), and Equifax, Inc. ("Equifax"), seeking damages under the Fair Credit Reporting Act ("FCRA") 15 U.S.C. § 1681 et. seq., and additionally under state statutory and common law.

 Plaintiff filed his complaint on February 8, 1994. Diners Club and Credit Services moved to dismiss the complaint as to them. The Court granted that motion in an opinion dated July 26, 1994, reported at 859 F. Supp. 701. Thereafter plaintiff agreed to dismissal of the action against Nissan and Equifax. Plaintiff has never served Salon with the complaint.

 Plaintiff then filed a first amended complaint dated December 5, 1994. Notwithstanding the events just recited, plaintiff continues to list all the original parties defendant in the caption. It is apparent, however, that plaintiff's only surviving claims are against TRW and Trans Union.

 Following extensive discovery, TRW and Trans Union now move for summary judgment under Rule 56, Fed.R.Civ.P.

 Background

 TRW and Trans Union are credit reporting agencies. Subscribing companies report to such agencies both the credit information they obtain when they grant credit to a consumer and the payment history of the consumer. Credit reporting agencies then compile a credit report on the consumer to distribute to other subscribers from whom the consumer has requested credit.

 The plaintiff's amended complaint alleges that on or about June 27, 1991, he became aware that an unknown third party or parties had obtained credit from Diners Club, Salon and Nissan in plaintiff's name without his knowledge or authorization. This resulted in debts accruing against plaintiff which were not paid. At the same time, plaintiff learned that Diners Club, Nissan and Salon had reported to TRW that plaintiff failed to pay debts he owed to them.

 Plaintiff further alleges that in April 1992, he learned that Diners Club and Salon had reported to Trans Union that plaintiff had failed to pay debts owed to them.

 Plaintiff contends that these debts were incurred by others without his consent, so that the reports of his indebtedness were inaccurate.

 Plaintiff complains of the actions taken by TRW and Trans Union after he notified those agencies of the circumstances. It will be useful to consider the evidence revealed by the record with respect to each credit reporting agency separately.

 TRW

 In late June 1991, plaintiff obtained a copy of a TRW credit report on him dated June 27, 1991. Plaintiff noted a number of references to entities with whom he had not conducted business. Plaintiff wrote a letter dated July 2, 1991 to TRW's office in Parsipanny, New Jersey, advising TRW of those circumstances and asking that the items in question be cleared up as quickly as possible, since "I am an applicant to the Connecticut Bar and they will require a clean TRW."

 While plaintiff's June 27, 1991 credit report contained a number of disputed items, plaintiff confines his complaint with respect to TRW to the delinquent account reported by Salon. *fn1" Accordingly I will confine this discussion to that account.

 Plaintiff complains of TRW's failure to remove inaccurate debts from his credit history from June 1991 to March 1994. He further complains that TRW reported these inaccurate debts to Daily Reporting Service, a company to which inquiries about an individual's credit rating may be directed.

 According to the affidavit of Carolyn S. Helm, a Consumer Affairs Special Services Specialist in TRW's information systems and services division, located in Allen, Texas, that office of TRW received plaintiff's July 2, 1991 letter on July 11. In preparing her affidavit, sworn to on March 8, 1995, Helm reviewed the pertinent documents still existing in the TRW's files. Helm states that on July 11, 1991, the day her division received plaintiff's letter, TRW "reinvestigated the [Salon] accounts by sending a CDV to Salon Furniture indicating that plaintiff disputed the accounts as not belonging to him." Affidavit P 10.

 A "CDV" is a Consumer Dispute Verification form. TRW sends that form to subscribers who have reported disputed accounts. The CDV asks subscribers to check whether the information they have about a consumer matches the information on TRW's credit report. If a subscriber fails to respond to a CDV or indicates that TRW's account information is incorrect, TRW deletes the disputed information. *fn2"

 It is TRW's practice to send to a consumer such as plaintiff an updated credit report upon the completion of the reinvestigation process. Consumers are also advised of their rights to have corrected credit reports sent to third parties who received reports on the consumer before recent changes were made.

 Where the reinvestigation does not resolve the dispute, TRW's practice is to notify the consumer of his right to submit a statement setting forth the nature of the dispute. TRW includes the consumer's statement in the consumer's credit report, so that it will come to the attention of all persons authorized to obtain a particular consumer's report. Helm affidavit at P 5.

 In the case at bar, Helm's affidavit recites that TRW received the CDV back from Salon stating that the accounts were correctly reported as belonging to plaintiff. On July 25, 1991, a note was placed in plaintiff's credit file that the Salon accounts should continue to be reported as plaintiff's, based on the response received from Salon. On August 13, 1991, according to Helm's affidavit at P 10, confirmation of the investigation results was mailed to plaintiff.

 That confirmation form contained the following notice:

 
STATEMENT OF DISPUTE - If our checking has not resolved your dispute, or you continue to dispute the accuracy of the item, you may file a brief statement explaining why the information is not accurate. We will note the item is disputed and include your statement or summary of it on your file. At your request, we will send a copy of the report, reflecting the results of our checking and your statement (or summary) to any credit grantor or employer shown as an inquiry.
 
If the information on your report is accurate, but you feel that an explanation of the circumstances as to why you could not or did not pay is necessary, you should directly inform the credit grantor of the explanation when applying for credit. An explanation of the circumstances is not considered a statement of dispute and will not be added to your report.

 The confirmation form that TRW's records indicate was mailed to plaintiff contained a notation that Salon had reported back to TRW that the account was correctly reported as belonging to plaintiff and that TRW would not update the account information.

 According to TRW's records, its next communication from plaintiff with respect to the Salon account took the form of the complaint in this action, which plaintiff filed on February 8, 1994. A copy of the complaint came into Helm's hands. She accessed a TRW credit report about plaintiff, dated March 11, 1994, which showed an indebtedness by plaintiff to Salon since July 1991. Helm tried to verify the account by telephone with Salon. Salon refused to verify the account by telephone or fax. Helm sent a CDV form to Salon by mail on March 21, 1994, indicating that plaintiff disputed the account. On March 22, 1994 Helm removed the Salon account from plaintiff's credit report, pending Salon's return of the CDV form. On April 1, 1994, TRW received the form from Salon with the notation that the account was "not on system." Helm affidavit at P 12. TRW has not included the Salon account on plaintiff's credit report since it was deleted on March 22, 1994.

 Although TRW retains such records indefinitely, it has no record of receiving a fax from Salon at any time, informing TRW that the Salon accounts should no longer be listed on plaintiff's credit report. Helm affidavit at P 13. TRW's counsel advised plaintiff's counsel in a letter dated April 11, 1994 that the Salon account was investigated and removed from plaintiff's credit report on March 22, 1994. Counsel enclosed a copy of plaintiff's credit report dated April 7, 1994 on which no derogatory items appeared. Affidavit of Heidi Wendel, Esq., verified in March 1995 and Ex. H.

 Trans Union

 Plaintiff's amended complaint alleges that in April 1992, plaintiff became aware that Diners Club and Salon had reported to Trans Union that plaintiff failed to pay debts owed to them. Plaintiff further alleges that in April 1991, he notified Diners Club and Salon that he was not the individual who accumulated the debts in question. Plaintiff further alleges that on or about "April, 1992," Diners Club notified Trans Union to remove the reports from plaintiff's credit history that plaintiff failed to pay a debt to it and that Diners Club had instituted litigation against plaintiff. That particular allegation is made "upon information and belief." Amended Complaint P 15. Plaintiff further alleges that "on or about April 18, 1992," Salon notified Trans Union to remove the report from plaintiff's credit history that plaintiff failed to pay a debt to Salon. That allegation is also made "upon information and belief." Id. at P 16.

 Plaintiff complains of Trans Union's failure to remove these inaccurate reports from his credit history statement during the period from April 1992 though March 1994. Plaintiff also complains that Trans Union reported these inaccurate debts to Daily Reporting Services.

 On April 18, 1992, plaintiff went to the Salon Warehouse in Hoboken, New Jersey. According to plaintiff's deposition testimony he met there with an individual named Valez, who acknowledged that plaintiff was not the purchaser of the items in question. Plaintiff testified that in his presence Valez prepared a two-page fax transmission and sent it as plaintiff watched. Valez gave plaintiff a copy of the fax. It consists of two pages. The first page, bearing a Salon caption, indicated that the fax was being transmitted to Trans Union. It contained instructions to delete a fraud account. The second page of the fax was a form filled out by Salon listing the accounts and plaintiff's name. It contained the notation: "This is a fraud account. Should have never been reported - please delete."

 Plaintiff formed the impression, based upon what Valez told him, that this communication would clear his account with all credit reporting agencies. There is no evidence, however, that Salon communicated with anyone other than Trans Union.

 Trans Union's consumer relations manager, Eileen Little, testified by deposition that plaintiff's protest letter dated December 3, 1993 worked its way to her department on January 10, 1994. Having reviewed Trans Union's records, Little testified that when she received plaintiff's complaint, the Nissan debt was no longer listed on the his credit report. CDVs were sent to Diners Club and Salon. On the basis of Diners Club's response, Trans Union deleted that item from plaintiff's credit report. Salon made no response, and Trans Union deleted that item for that reason. Trans Union sent plaintiff a corrected copy of his credit report in February 1994, with all disputed items having been deleted.

 After plaintiff filed this suit on February 8, 1994, Little was shown a copy of the apparent April 18, 1992 fax from Salon to Trans Union. She testified that at that time, there was no need to go back to reinvestigate the Salon account. There were two reasons. First, the Salon account was no longer being carried on plaintiff's credit report. Secondly, Trans Union's files reflected that as of December of 1993, Salon was still reporting the account as a debt of plaintiff's. Little testified: "So even if they [Salon] sent us that letter in 4 of '92, they continued to send an update through their tape dated 12 of '93 carrying that same information." Little Deposition at 4. In point of fact, a credit report for plaintiff generated by Trans Union on January 27, 1994 showed that in January 1994, Salon had advised Trans Union that plaintiff was still indebted to it. Little Deposition Ex. 2-v.

 Plaintiff alleges eight causes of action against both TRW and Trans Union. The first two causes of action arise under the FCRA. The first cause of action charges negligence under 15 U.S.C. § 1681o. The second cause of action charges willful noncompliance with the FCRA under 15 U.S.C. § 1681n.

 The remaining causes of action allege state and common law claims. The third cause of action alleges violation of § 349 of the New York General Business Law; the fourth cause of action alleges negligent infliction of emotional distress; the fifth cause of action alleges intentional infliction of emotional distress; the sixth cause of action alleges defamation; the ...


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